Dear Sophie: How do we handle being fully remote when it comes to immigration?

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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Dear Sophie,

Our fully remote startup is looking to fill several new engineering positions. 

We have not gone through the immigration process with employees before, and a couple of prospective hires will require visas. One is currently on an H-1B and living in Dallas. Another candidate is currently living in Germany and wants to work from Miami.

What should we consider before hiring these engineers? How do we handle being fully remote when it comes to immigration?

— Distributed and Determined

Dear Distributed,

The pandemic rapidly changed the way we work. Many companies like yours now have a distributed or a hybrid workforce.

I recently had a great talk with Hannah Genton, a founding partner of CGL, a corporate law firm that has had a fully distributed team since it launched in 2017. We chatted about her work with startup clients and she described several issues that startups should keep in mind, particularly if they have distributed or hybrid teams.

Protecting your company

Genton says consulting a corporate attorney before extending a job offer, taking on equity or debt, or signing major contracts will help you make informed decisions and protect your company from penalties and lawsuits. Corporate, employment and privacy laws differ in each state, so you should know what you can and can’t do. A corporate attorney can also guide you in creating a distributed work policy for your company.

I also recommend consulting an immigration attorney before moving forward with the two prospective new hires you mentioned. An immigration attorney can guide you through the H-1B transfer process, next steps to retain that person after the H-1B visa is set to expire and assess the most promising visa options available at the time.

I list some of the most common work visas that startups use to sponsor talent in this TechCrunch article, but an attorney can also assist you in devising a solid immigration strategy based on your company’s goals and timing.

Now, let’s dive into your other questions.

What should I know about H-1B transfers?

You should know that the maximum stay allowed under an H-1B is six years — unless the employer or the H-1B visa holder has already started the green card process. Given that, you should find out:

• How long your prospective hire in Dallas has been in the U.S. on H-1B status.
• When the H-1B is set to expire.
• Whether the candidate or their current employer has filed for a green card, and if so, when.

Under the American Competitiveness in the 21st Century Act (AC21), individuals with an H-1B have the flexibility to change jobs during the green card process and the ability to extend their H-1B visa beyond the six-year limit to avoid having to leave the U.S. while waiting for a green card.

Keep in mind that an H-1B transfer does not reset the clock on the six-year maximum the individual can live and work in the U.S. If the individual’s current H-1B is set to expire in two years, that will remain the expiration date when their H-1B visa is transferred to your company. To retain that individual in the U.S. beyond six years, you will need to sponsor them for a green card or another visa, such as the O-1A extraordinary ability visa.

If the candidate has a green card application (Form I-140) that has already been approved by U.S. Citizenship and Immigration Services (USCIS) — and at least 180 days have passed since USCIS received the candidate’s Form I-485, the last part of the green card process — then your startup will be able to extend the candidate’s H-1B visa beyond the six-year H-1B limit.

If the I-140 was approved, but an I-485 has not been filed or it has not been at least 180 days since the I-485 was filed, then you will have to start the green card process again. However, the individual will retain the priority date (which determines their place in line for a green card), which is significant for individuals who were born in India or China and face long waits for green cards due to annual country quotas.

To do an H-1B transfer, your company would need to file both a Labor Condition Application (LCA) with the U.S. Department of Labor, which requires you to pay the prevailing wage based on the position and the location of the position, and an H-1B application with USCIS.

Can I sponsor visas without a physical office?

Yes! We have been successful in supporting employers with distributed employees to get petitions approved to sponsor individuals for visas and green cards even if they don’t have a physical office. It’s important to work with your legal team to list the worksite locations of your employees (such as their home addresses) on all immigration-related forms and documents.

If an employee moves their residence, thereby changing the worksite location, talk to your immigration attorney, because you may be required to file an amended visa application with U.S. Citizenship and Immigration Services (USCIS). For the H-1B, specifically, you may need to repost or file a new LCA with the Labor Department as well.

You should know that Immigration and Customs Enforcement (ICE) or other government officials may ask employers to verify that all of their employees are legally allowed to work in the U.S. by asking to inspect a company’s Form I-9, or Employment Eligibility Verification, for all employees.

Since March 2020, the government has been inspecting I-9 documents virtually rather than during in-person inspections, as was the case pre-pandemic. While the U.S. Department of Homeland Security, which oversees USCIS and ICE, is considering making this virtual inspection option permanent, the flexibilities related to Form I-9 compliance are set to expire on October 31, 2022.

You’ve got this!

— Sophie

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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. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.

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