Dear Sophie: How do we craft a strong H-1B petition? If I’m not selected, what are my options?
Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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If I’m selected in this year’s lottery, how do we craft a strong H-1B petition? If I’m not selected, what are my other options?
— Hoping in Hayward
Thank you for asking the questions that are on the minds of many H-1B first-timers. Don’t worry! Several options exist if you’re not selected.
It’s really important, especially for early-stage companies, to work with experienced attorneys to guide them through this process. Now that USCIS has changed it’s system, if you’re already selected, then having a great attorney is really important to mitigate any remaining risk in the rest of the process. There are lots of wonderful, experienced immigration lawyers out there to choose from.
This year’s new H-1B online lottery registration process ended on March 20. By March 31, U.S. Citizenship and Immigration Services (USCIS) will notify companies whose H-1B candidates have been selected.
If USCIS selects you, your sponsoring employer will have 90 days to submit a complete H-1B petition. Employers can file an H-1B petition up to six months before a candidate’s intended start date.
It’s great that you’re already here in the U.S. H-1B candidates living outside of the U.S. seeking consular processing may face delays coming here for their employment start date depending on when coronavirus-related consulate closures and travel restrictions are lifted. These situations need to be addressed individually.
If meeting a deadline during any step of the process becomes difficult or impossible due to COVID-19, it’s possible to request special handling from the government. The federal government grants extensions under special circumstances, such as floods and hurricanes. The COVID-19 pandemic is a special circumstance.
Because COVID-19 is prompting policy and procedural changes with little or no warning, I recommend consulting an immigration attorney for assistance.
If you haven’t already, assemble the necessary documents as soon as possible. Obtaining documents may take longer now that most universities and companies are closed due to the pandemic.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms.
Your sponsoring employer will need to assemble documents that demonstrate the appropriate policies and cash flow to hire you. Startups need to be extra careful to meet all the requirements. You should have easily accessible:
- Current resume
- Diplomas and certificates
- Passports used to enter U.S.
- Past immigration documents (I-20, DS-2019, I-797, etc.)
A Labor Condition Application (LCA) approved by the U.S. Department of Labor is required with all H-1B petitions. For the LCA, your startup must promise to pay at least the prevailing wage to you and ensure that your employment conditions won’t negatively affect other workers.
If this is a startup and it’s the company’s first H-1B, it must get its Federal Employer Identification Number (FEIN) verified by the Labor Department’s Office of Foreign Labor Certification before starting. That process typically takes a week or so. Timing is key to filing an LCA. Keep in mind that the Labor Department typically makes a decision on whether to certify an LCA within seven business days.
Employers do not need to submit evidence to the Labor Department for an LCA, but they must post a copy of the H-1B notification, which can be done electronically, as well as keep all supporting documents in a file and make it available for public viewing.
The employer will also need to fill out Form I-129 (Petition for a Nonimmigrant Worker), and assemble compelling evidence and supporting documents. Check and double check the form and your documents to avoid mistakes and omissions, which can prompt USCIS to deny a petition. Make sure the info contained in the LCA matches Form I-129. Remember to include all required signatures.
USCIS recently announced that scanned or photocopied signatures will be allowed on all documents and petitions during the COVID-19 emergency. Make sure you pay the proper fees and send your package to the correct address with a way to track that package.
USCIS recently announced the temporary suspension of premium processing for H-1B petitions. The agency expects to resume premium processing for individuals changing status from an F-1 student visa by May 27, and all others by June 29. For an extra fee, premium processing enables employers to receive a decision on a petition within 15 days. Without premium processing, the USCIS California Service Center is currently taking two to four months.
If you don’t get selected in the H-1B lottery, relax! Your startup can sponsor you for an H-1B again next year because there’s no limit on the number of years you can be entered in the lottery, whether you’re inside or outside the U.S. and whether you’re currently employed by them or not. In the meantime, several other visa options exist for individuals like you who qualify for an H-1B:
- O-1A Visa: If have “extraordinary ability” in the sciences, education or business, you could be eligible for an O-1A. However, the bar for qualifying for an O-1A is higher than for an H-1B.
- J-1 Visa: Most employers cannot directly sponsor an individual for a J-1 visa, which is a work-and-study visitor exchange program. The U.S. State Department designates public and private sponsor organizations to supervise the exchange programs and application process that can be used to support a J-1 at a specific company.
- L-1 Visas: If your employer has an office outside of the U.S. — or you can set up one for them — and you can work in that overseas office for 12 months or more, your employer can then transfer you back to the U.S. under an L-1A visa for executives and managers or an L-1B visa for employees with specialized knowledge. No annual quotas exist for L-1 visas, and these visas are “dual intent” and can lead to a green card.
- F-1 Visa: You could become a full-time student at an accredited college or university under an F-1 visa. Some graduate programs require Curricular Practical Training (CPT) or allow Optional Practical Training (OPT). Both training programs enable students to gain work experience in their field of study.
The following options are available to you if you’re a citizen of Chile, Singapore, Australia, Canada or Mexico:
- H-1B1 Visa: If you’re a citizen of Chile or Singapore, you’re eligible for an H-1B1. Each year, 1,400 H-1B1 visas are reserved for Chileans and 5,400 are reserved for Singaporeans. Rarely are those visas exhausted.
- E-3 Visa: If you’re an Australian national, you’re eligible for an E-3 for “specialty occupation” professionals who have specialized theoretical or practical knowledge. An LCA is required. A maximum of 10,500 E-3 visas is available annually, but they rarely are exhausted.
- TN Visa: If you’re from Canada or Mexico, you could work temporarily under a TN (Treaty National) visa for certain occupations. TN visas have no annual quota and allow for unlimited extensions as long as the employer and conditions of employment remain the same.
Fingers crossed that you get selected in the lottery!
All my best,
Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!