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.”
My F-1 OPT will run out this June. My employer has agreed to register me in the H-1B lottery in March.
What are my options if I’m not selected in the lottery?
Depending on your field of study for your most recent degree, you might qualify to renew your work permit through an application for STEM OPT. If eligible and approved, this would extend your work authorization for two years in the United States.
There’s recent good news here! Qualifying for the STEM OPT extension just got easier; the administration recently announced plans to improve access to immigration for folks in STEM fields. Cori Farooqi, an associate attorney at my firm and an expert in family immigration law, and I recently chatted about healthy immigration habits in the new year.
Cori and I agree that creating strategic and backup plans when it comes to immigration and naturalization is an important consideration. Also at the top of both of our lists is to consult an immigration attorney, who can help you achieve your goals based on the latest immigration developments.
The hot news from last week could be great for you: For the first time, graduates in the fields of data science, data analytics, business analytics, data visualization, financial analytics, social sciences, environmental studies, climate science and more now qualify for the STEM OPT work extension. Just last week, the Secretary of Homeland Security, who oversees U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS), added 22 fields to the list of STEM (science, technology, engineering, mathematics) fields that qualify for STEM OPT. We could not be more excited!
Some reminders: The earliest you can apply for STEM OPT is 90 days before your OPT work authorization is set to expire. Given the backlogs and processing delays at USCIS, I recommend you coordinate with the Designated School Official (DSO) at your university and your employer to file for STEM OPT as early as possible.
If you’re able to get STEM OPT and you’re not selected in this year’s H-1B lottery, you’ll have at least two more chances to get selected in future H-1B lotteries. If you’re not able to get STEM OPT this year but you are selected for the H-1B lottery, take a look at an option called “Cap Gap,” which allows certain recent grads to continue working in the U.S. until their H-1B kicks in on October 1.
Fingers crossed that you won’t need a backup option, but if you do, take a look at this previous Ask Sophie™ column from last year in which I discuss alternatives to the H-1B lottery process.
Sending all my best!
I’m in the U.S. with an L-1A visa that will max out later this year. My wife has been with me during the whole period on an L-2. Can my wife apply for H-1B this year?
Would she need to leave the country to activate it?
Thanks for reaching out to me with this important question! Your wife is not required to leave the United States before an employer or prospective employer registers her for the H-1B lottery in March and, if selected, petitions her for a change of status. In fact, many immigration attorneys are advising their clients to remain in the United States as long as possible, as travel and obtaining a stamping interview remain difficult. Talk to your attorney about the specifics of your wife’s status, as her current expiration date might be related to the validity of your L-1A.
If she is selected in the H-1B lottery and approved for an H-1B, her employer can most likely file for a change of status for her from an L-2 to an H-1B. Even though the U.S. has lifted COVID-related travel restrictions and the U.S. Department of State announced in December that consular officers can now waive interviews for non-immigrant visas like the H-1B under certain conditions, it’s still quicker for employers to get an H-1B for a candidate who is currently in the U.S. than for one who is living outside the U.S. by utilizing the change of status process.
In terms of your own options beyond the L-1, talk with your attorney about whether you are eligible for an H-1B through the lottery in March. There’s an interplay between time spent in L-1 and time spent in H-1B in the U.S.
Also, see if you can qualify for an O-1A visa. The O-1A is one of the quickest visa options available if you’re eligible, and is becoming easier to obtain for individuals who work in a STEM field. To retain more international talent who have expertise in STEM fields in the U.S., USCIS recently announced that special consideration will be given to those individuals.
Consult an immigration attorney, who can help you identify other visa and green card options and backup plans based on your and your wife’s timing, goals and circumstances.
You’ve got this!
I have a 10-year green card that will expire later this year. I’ve been married to a U.S. citizen for 11 years, but we are in the process of divorcing.
Can I apply for U.S. citizenship even after my divorce?
—New Year, New Life
Congratulations on your transition to a new chapter in your life. In fact, you are probably already eligible to apply for U.S. citizenship. An immigration attorney would have probably advised you previously that with your marriage-based green card, you could have been eligible to apply for citizenship three years after you received your green card, if you were married to your citizen spouse the whole time. On the other hand, if you received any other green card through another family member, an employer sponsor or with a self-petition, then you became eligible to apply for citizenship after five years of permanent residence and having a green card.
Currently, the wait time for U.S. Citizenship and Immigration Services (USCIS) to process naturalization applications for citizenship is more than a year, so you should submit your application as soon as possible so you can vote and partake in the other benefits of citizenship.
If you haven’t already, you should also work with an immigration attorney to renew your green card now to make sure the renewal process goes smoothly, since it can take a year or more. Your attorney can help you get temporary proof of permanent residence so you can continue to work or travel abroad.
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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
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!