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,
I’m a co-founder of a very early-stage startup. My co-founder and I are considering bringing on a third co-founder, who was recently laid off. She is currently in the United States on an H-1B with a grace period that will expire soon.
What are the fastest, least risky immigration options that we should consider? What’s going on with potential increases to USCIS filing fees?
— Careful Co-founder
Dear Careful,
It’s wonderful to hear that you’re expanding your team and supporting your prospective co-founder.
This is the right time to hire international talent, since filing fees for most work visas and green cards will likely increase later this year. The U.S. Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), earlier this month issued a proposal that would substantially increase fees for many non-immigrant visas and would slow the premium processing time from 15 calendar days to 15 business days (roughly three calendar weeks), among other changes.
For instance, the filing fee for an H-1B application (new, renewal or transfer) will increase from $460 to $780. DHS is accepting public comments on this proposal until March 6, 2023, and I urge you and other employers, particularly early-stage startups, to weigh in on these changes.
First, buy time
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Before I dive into your first question, I highly recommend talking with an immigration attorney ASAP about your prospective hire’s situation and timing. An immigration attorney can suggest strategies tailored to your startup and aimed at mitigating risks. Calculating the grace period after a layoff can be tricky, as it involves a lot of factors, and you want to ensure that your co-founder maintains valid status in the U.S. and has the proper authorization for any required international travel.
Since your prospective co-founder’s 60-day grace period is ending soon, she can get additional time quickly by applying online for a change of status from H-1B to B-1 business visitor status, which will enable her to request to stay in the U.S. for another six months. It will also give you time to prepare an H-1B transfer filing and seek to change her status back to an H-1B or another work visa.
Remember that the B-1 status is not a work visa and does not grant work authorization, which means she will not be authorized to be employed by your startup. However, she can do a few things that immigration officials do not consider as work, such as:
- Attend business meetings or consultations.
- Attend a convention or conference.
- Negotiate contracts.
The fastest and least risky immigration options
The fastest and least risky options are to either transfer your prospective hire’s H-1B to your startup or sponsor her for an O-1A extraordinary ability visa — if she qualifies. The qualifying criteria for an O-1A are substantially more difficult to achieve than for an H-1B, but early-stage startups will find it easier to meet the requirements as a sponsoring company than they would with the H-1B visa.
To qualify for an O-1A, your candidate must meet at least three out of eight criteria, which include:
- Receiving nationally or internationally recognized awards.
- Being invited to join an association that demands outstanding achievements.
- Being featured in professional or trade publications or major media.
- Receiving or set to receive higher than average compensation, including equity in a company.
When applying for an H-1B, early-stage startups are subjected to more scrutiny from the USCIS than established companies. An early-stage startup will need to present more documentation demonstrating its existing and ongoing business operations and finances.
To transfer the candidate’s H-1B to your company, your startup must:
- Demonstrate to USCIS that it can pay the prevailing wage, based on the position and the geographical location where the candidate will work for the duration of the H-1B. Equity in a company is not considered wages for H-1Bs. (The O-1A does not have any minimum wage requirements.)
- Show it can afford to support business operations. If your startup is pre-revenue, this can be shown with a business plan and bank statements showing your runway from an initial investment. The amounts required depend on your company’s situation.
- Prove that the position your prospective co-founder will fill is a specialty occupation requiring at least a bachelor’s degree and qualifies for an H-1B.
Your co-founder can start working on your startup once USCIS receives her H-1B transfer petition. The H-1B does not need to be approved if you are able to file before the end of her grace period. With premium processing, USCIS guarantees it will make a decision or issue a request for evidence within 15 calendar days.
It may take at least two weeks for your startup to get the necessary certification to submit its H-1B transfer petition to USCIS. If this is your startup’s first H-1B, your attorney must get your startup’s Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification. That usually takes about a week.
Next, your attorney will need to file a Labor Condition Application (LCA) with the Labor Department for certification. An LCA will require your startup to attest that it will pay the prevailing wage based on the position and where the position is located, and that hiring an H-1B beneficiary will not negatively impact American workers. The LCA process typically takes at least a week.
A certified LCA must be filed to USCIS with the H-1B transfer petition. I often recommend filing the H-1B petition with premium processing for peace of mind.
Things to remember
The H-1B will require your startup and prospective co-founder to have an employer-employee relationship. That means someone at your startup, such as another co-founder, must:
- Supervise the H-1B candidate.
- Hold them accountable for poor job performance.
- Have the ability to fire them.
An O-1A can be petitioned by an agent for an itinerary of services.
Collecting all the supporting documents needed for the H-1B, and even more so for the O-1A, is the most time-consuming part of the application. The O-1A visa is particularly document intensive!
If you choose to transfer your prospective co-founder’s H-1B to your startup, keep in mind that the H-1B is usually valid for a maximum of six years: an initial three-year period with one three-year extension. When an H-1B is transferred to a new employer, the clock on the H-1B end date does not reset, so it’s important to start the green card process.
For more details on employment-based green card options, check out this Dear Sophie column on the EB-1A extraordinary ability green card and the EB-2 NIW (National Interest Waiver) green card.
I’m hopeful that the U.S. Department of Homeland Security (DHS) will extend the grace period for H-1B and other visa holders who are laid off to give you and your candidate more time. In December, Silicon Valley Congresswomen Anna Eshoo and Zoe Lofgren sent a letter to Secretary of Homeland Security, Alejandro Mayorkas, and USCIS Director, Ur Jaddou, requesting that the 60-day grace period be extended to 120 days.
All my best,
— 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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