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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With more than 750,000 H-1B registrations this year, is it realistic for my early-stage startup to consider hiring candidates who are seeking them?
— Skeptical Startup
I know, I know: The numbers are intense.
I understand your skepticism given that the odds of companies getting their H-1B visa candidates selected in the annual lottery process have been on the decline as demand among employers for H-1B visas continues to rise. Despite some well-publicized layoffs, many employers continue to hire, plus the CHIPS Act of 2022 and the Infrastructure Investment and Jobs Act of 2021 are spurring more job creation.
For this year’s H-1B lottery, the U.S. Citizenship and Immigration Services (USCIS) received a whopping 758,994 eligible registrations, and for the first time, more than half — nearly 408,900 — were H-1B candidates who had more than one employer that registered them in the lottery. (How does the annual lottery work? Check out my podcast for an overview.)
Again this year, with no second lottery on the horizon, these are important questions to ask.
Still, I believe it’s still worth it to register employees in the annual H-1B lottery as part of a multiprong strategy to attract and retain international talent in the United States, as the six-year, dual-intent status is so valuable to companies and the team members who hold it.
That remains true even if the USCIS implements a proposal to increase the H-1B lottery registration fee to $215, up from the recent $10 fee. Although it’s a large increase, the additional $205 per registration likely won’t be a limiting factor for even early-stage startups considering the process.
The chances of having an H-1B candidate picked in the lottery has dropped dramatically, particularly since 2020, when the USCIS implemented its online H-1B lottery registration system. Before 2020, companies that wanted to enter an employee or prospective employee in the H-1B lottery had to submit a completed H-1B application.
This time-intensive, costly, and risky process often meant that participating in the H-1B lottery was unrealistic for most startups. Additionally, companies had to be ready to front the full filing fees at the time of the lottery, not knowing how many people would be selected and how many checks would be cashed. Now it’s easy to register candidates, and companies have discretion about whether to proceed with the full petition after knowing whether somebody was selected.
Raising the annual cap of 85,000 H-1B visas (65,000 for those with bachelor’s degrees and 20,000 for those with master’s or higher degrees) requires congressional approval and remains highly unlikely. However, the USCIS could look at alternative administrative changes, such as limiting each H-1B candidate to one entry in the H-1B lottery regardless if that individual has multiple job offers, in order to provide a more level playing field.
This year’s H-1B lottery
While getting job offers from multiple companies that register an H-1B candidate in the lottery is not against the law, the USCIS indicated it would closely scrutinize H-1B beneficiaries, companies, and applications for potential abuses and fraud.
After this year’s lottery, the USCIS stated:
The large number of eligible registrations for beneficiaries with multiple eligible registrations — much larger than in previous years — has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection.
If any of your early-stage employees are on F-1 Optional Practical Training (OPT) or STEM OPT, the two-year extension for students who graduated in a STEM field, make sure to enter them in the H-1B lottery every March until they are selected before they graduate and while they are maintaining OPT and STEM OPT status. You can look at other visa alternatives as well.
Visas for citizens of specific countries
You have other options if your startup’s employees or prospective employees aren’t selected in the H-1B lottery. There are a handful of work visas aimed at individuals from certain countries. If any of your employees or prospective employees are from Australia, Canada, Chile, Mexico, or Singapore, these are great options to consider:
The E-3 specialty occupation visa for Australian citizens is similar to the H-1B. The number of E-3 visas available each year is capped at 10,500. But unlike the H-1B, there is no annual lottery, so you can apply for this visa on behalf of an employee or prospective employee at any time of the year.
The H-1B1 specialty occupation visa is an H-1B for Chilean and Singaporean citizens that can also be applied for at any time of the year without going through a lottery. Every year, 1,400 H-1B1 visas are reserved for Chileans, and 5,400 are reserved for Singaporeans, but rarely are those caps exceeded.
The TN (Treaty National) visa for Canadian and Mexican citizens is limited to certain professions, but most of these jobs overlap with H-1B specialty occupations. There is no cap on the number of TN visas that the USCIS approves annually.
The extraordinary ability visa
The bar for qualifying for an O-1A extraordinary ability visa is much higher than for an H-1B. But we have successfully obtained O-1A visas for individuals working at early-stage startups in STEM and business fields, particularly since the Biden administration made it easier last year for individuals with degrees and experience working in STEM fields to qualify.
To get an O-1A for an employee or prospective employee, you must demonstrate that the individual has received national or international acclaim or has extraordinary ability or achievements in their field. To do that, the O-1A candidate must meet at least three of the eight criteria for extraordinary ability. That includes qualifications such as receiving awards for excellence, being invited to be a member of an association that requires outstanding achievement, having articles published about the individual or the individual’s work, and judging the work of others in the individual’s field. Check out these previous columns for info on how to qualify for each O-1A criteria and how to present a strong O-1A application.
Cap-exempt H-1B visas
The annual 85,000 cap on H-1B visas and the resulting lottery applies to private employers like yours. Many employers, including government agencies, universities and nonprofits connected to universities, are exempt from the annual cap and lottery.
That means they can sponsor individuals for cap-exempt H-1B visas, which can be applied for at any time of the year without limit. Nonprofit organizations that support H-1B sponsorship for fellowships are another option as well.
Once the USCIS approves that H-1B, your startup can file for a concurrent cap-exempt H-1B. Keep in mind that your startup will be expected to pay for all government filing, legal and other fees associated with both H-1B applications.
You’ve got this!
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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!