Here’s another edition of “Ask 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 startup employs about 30 people globally through a combination of direct and co-employment based on their country.
Over the last year and a half or so, we helped several team members relocate from Ukraine and Russia to various non-Schengen countries such as Georgia, Taiwan, Thailand, Turkey, and Uzbekistan.
We realize it’s more expensive if we bring these employees to the U.S., but our startup will be more successful. How do we bring them here?
— Meaningful Moneymaking
Dear Meaningful Moneymaking,
Many companies have helped make a meaningful difference in people’s lives, supporting talented team members and their families from countries such as Ukraine and Russia to relocate to safety. Thank you for now considering how to help certain individuals relocate to the U.S. May all humans enjoy peace, prosperity, and freedom.
Many employers are continuing to work with the Ukrainian and Russian professionals who have left their homes since Russia invaded Ukraine in February 2022.
Of the 8 million people who have left Ukraine, more than 270,000 have been admitted to the United States, most of them under the Uniting for Ukraine program, which provides a temporary stay in the United States and a work permit.
Between 500,000 and as many as 1 million people have left Russia and thousands of Russians have sought entry to the U.S. between February 2022 and April 2023. According to Russian government figures, about 100,000 IT specialists (about 10% of the tech workforce) left Russia, which is likely underestimated.
Before I dive into options for bringing Ukrainian and Russian employees to the United States, I recommend you work with an immigration attorney to devise a strategy for each employee you’re seeking to sponsor based on their education, skills, qualifications, location, and situation. Your company has several options for bringing your Ukrainian and Russian employees to live and work in the United States.
Uniting for Ukraine
The Uniting for Ukraine program, which began last year, provides a way for Ukrainian citizens and their immediate family members to come to the United States to stay for two years under temporary parole status. Individuals participating in the program must have a U.S.-based supporter or multiple supporters — an individual, organization, or business — who agrees to financially support their stay.
The supporter must fill out Form I-134A (Online Request to be a Supporter and Declaration of Financial Support) and submit it to U.S. Citizenship and Immigration Services (USCIS). The program includes the option for a Employment Authorization Document (EAD) — otherwise known as a work permit.
Right now, parole under the Uniting for Ukraine program cannot be extended beyond two years, but that may change. Your company could consider sponsoring employees on parole for work visas or green cards. I explain in more detail below.
L Visas
If the employees you are seeking to transfer to the U.S. worked for your company or an affiliate of your company abroad for at least one year, then they may be eligible for either the L-1A visa for an intracompany manager or executive transferees or the L-1B visa for intracompany specialized knowledge transferees, depending on their role.
Executives who get an L-1A may be eligible for an EB-1C green card for multinational executives and managers.
If you go the L visa route, you will have the strongest case if they were paid abroad in a subsidiary or parent company to your U.S. startup, and if you can demonstrate at least one year of paystubs. Other routes might be possible but are more complex, such as if they were working at a global PEO-type organization.
H-1B visa before the lottery
Your employee may be eligible for an H-1B specialty occupation visa if the position meets the definition of a specialty occupation, requires at least a bachelor’s degree or equivalent, and your startup agrees to pay the prevailing wage based on the position and where the position is based.
Your company can sponsor an employee before the next H-1B lottery in March 2024, if you can first secure a cap-exempt H-1B for that employee. Some employers, such as institutions of higher education, nonprofits tied to these institutions, and nonprofit and government research organizations, qualify to sponsor an individual for an H-1B visa at any time without going through the lottery. These employers are called cap-exempt employers because they are not subject to the annual H-1B visa cap that necessitates the lottery.
Once your employee gets a cap-exempt H-1B (which can be part-time), your company can sponsor the employee for a second, concurrent cap-exempt H-1B to work at your startup. I’m a fan of Open Avenues Foundation’s Global Talent Fellowship, which enables international talent in a STEM field to receive a cap-exempt H-1B visa by leading university students for about five hours a week on STEM project-based learning.
The maximum stay in the U.S. on an H-1B is six years unless the H-1B holder or your company starts the green card process before the start of the employee’s sixth year of H-1B status.
O-1A visa
The O-1A extraordinary ability visa is the work visa with the most stringent criteria. Still, unlike the H-1B, there are no education or salary requirements and no cap on the number of O-1As that can be issued each year. Still, many talented engineers, investors, UX/UI designers, scientists, and others can build up their skills and achievements to qualify.
To sponsor an employee for an O-1A, the recipient must meet at least three of eight criteria. The criteria include things like receiving national or international awards, being featured in professional or trade publications or major media and judging the work of others, such as at a hackathon or other competition.
In this Ask Sophie column, I go into more detail about each criterion and what qualifies.
The requirements for the O-1A visa are similar to those for the EB-1A green card.
Green cards
You can sponsor your employees for a green card without first getting them a work visa. However, if they are outside the United States when they start the green card process, it will probably take several years, depending on the green card category, before they can come to the U.S. on an immigrant visa. Many employers opt to sponsor employees for a work visa first to bring them to the U.S. and then apply for a green card while they’re in the U.S.
The EB-1 is the highest-priority green card category. According to the latest Visa Bulletin, the EB-1 is the only green card category for which green card numbers are available for individuals born in all countries except China and India. This applies to both the EB-1A and the EB-1C green cards. However, the numbers will reset in October at the start of the federal government fiscal year.
For the EB-2 NIW (National Interest Waiver), you must show that your employee has an advanced degree or exceptional ability and that the employee’s work and skills have substantial merit or national importance, will advance the field, and will benefit the U.S.
Applying for the EB-1A, EB-1C, or EB-2 NIW green card requires filing Form I-140, the green card petition, and Form I-485, application to register permanent residence or adjust status, along with supporting evidence to U.S. Citizenship and Immigration Services (UCSIC).
For employees in the U.S., since green card numbers are available in the EB-1 category for individuals born in Ukraine or Russia, both forms can be filed together if applying for an EB-1A or EB-1C green card. However, everyone must wait to file their I-485 if applying for a green card in the EB-2 category until green card numbers become available.
The EB-2 advanced degree or exceptional ability green card and EB-3 professionals and workers green card are also options. Both require PERM labor certification from the U.S. Department of Labor, which is currently adding several months up to a year or more wait before being able to file an I-140 in either category with USCIS. Like the EB-2 green card category, the EB-3 green card, beneficiaries from all countries must wait for green card numbers to become available.
Where there’s a will, there’s a way. You’ve got this!
— Sophie
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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!