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.”
I do recruitment for tech startups. With a surge of VC investing, many startups are urgently hiring.
Which visas offer the quickest options for international talent? Are there any unique strategies that you would recommend we explore?
— Maverick in Milpitas
Thanks for reaching out with your questions! We’re seeing the same urgent hiring demand from startups. In my columns, you’ll find a lot of materials to support you regarding the most common options. However, in a recent podcast episode, I discussed a handful of very specialized — and rarely used — temporary work visas that in most situations offer an expedited way to bring international talent to the United States to live and work. The eligibility requirements for these work visas are very specific, but if any prospective candidates qualify, these visas are great, quick options for the startups you work with.
The quickest option for employers is to hire international talent already in the U.S. because many consulates still remain closed to routine visa processing due to the pandemic. What’s more, travel restrictions have been imposed on India and remain in place for Brazil, the U.K., Ireland, 26 other countries in Europe, China and Iran. However, there are some exceptions in the national interest. As always, I recommend consulting with an experienced immigration attorney.
Here are a few uncommon visas and strategies that can offer quick options for startups to recruit international talent:
H-1B1 specialty occupation visa
The H-1B1 is a type of H-1B visa reserved for citizens of Chile and Singapore. Like the H-1B, the H-1B1 requires an employer sponsor to file a Labor Condition Agreement (LCA) with the U.S. Department of Labor for a specialized position to be filled by a citizen of Chile or Singapore.
Obtaining an H-1B1 is an expedited process compared to the H-1B: Even though H-1B1 visas are capped at 1,400 annually for citizens of Chile and 5,400 for citizens of Singapore, H-1B1 candidates and their employers do not need to go through a lottery process. What’s more, the H-1B1 annual caps are rarely met. And, perhaps most importantly, employer sponsors do not even need to file an H-1B1 petition (Form I-129) with U.S. Citizenship and Immigration Services (USCIS). The H-1B1 candidate just needs to bring the LCA, the job offer letter, and info about the employer and themself to a visa interview at a U.S. consulate.
The H-1B1 is not a dual intent visa like the H-1B, which means an H-1B1 holder cannot easily pursue a green card while in the U.S. For that reason, many employers eventually try to get those individuals onto an H-1B.
E-3 specialty occupation visa for Australians
The E-3 is similar to the H-1B — requires an employer sponsor, a specialty occupation and an LCA — but earmarked for citizens of Australia. Employers can sponsor an Australian citizen for an E-3 visa at any time of year even though the number of visas available each year is capped at 10,500. Like the H-1B1, the cap on E-3 visas is rarely reached.
One perk of the E-3 is that the spouses of E-3 visa holders are eligible to obtain a work permit even if they are not Australian citizens. And perhaps most important: The U.S. embassy and consulates in Australia have continued to issue visas throughout the pandemic due to the country’s success in fighting COVID-19. The E-3 can now benefit from Premium Processing for new cases and transfers initiated within the U.S.
Like the H-1B1, the E-3 is not a dual intent visa, which could potentially complicate the process for pursuing a green card while in E-3 status in the United States. Again, many employers eventually try to get individuals on E-3 onto H-1B visas before seeking a green card.
TN visa for Canadians and Mexicans
Thanks to the North American Free Trade Agreement (NAFTA) and its successor treaty, the United States-Mexico-Canada Agreement (USMCA), citizens of Canada and Mexico are eligible for a TN (Treaty National) visa if they will be working in one of the approved professions and meet the educational requirements for that profession.
The process for obtaining a TN visa depends on whether the TN candidate is a citizen of Canada or Mexico. Canadian citizens do not need to get a visa in their passport, so once the employer’s TN application for a Canadian citizen is approved by USCIS, that individual can seek entry with all pertinent documents at any port of entry to the U.S. In contrast, citizens of Mexico need to obtain a visa in their passport, which means they and their family members must have a biometrics appointment and a visa interview at a U.S. embassy or consulate in Mexico.
The TN is a nonimmigrant visa — not a dual-intent visa — and TN holders must prove to customs officials when entering the U.S. that they will eventually return to their home country.
E-1 and E-2 visas for citizens of treaty countries
The U.S. has trade treaties with some countries that enable citizens of those countries to get an E-1 or E-2 visa for essential employees in a supervisor or executive position or those with specialized skills. The E-1 is for treaty traders — those who work in international trade between their home country and the U.S. The E-2 is for treaty investors, such as an international founder who invests either capital or intellectual property to establish a startup in the U.S. In order for an international employee to be eligible for an E-1 or an E-2, the sponsoring employer must be majority-owned by individuals or an entity from the same treaty country.
Concurrent cap-exempt H-1B
Some employers, such as universities and nonprofit organizations affiliated with universities, are exempt from the once-a-year H-1B lottery. That means they can apply for H-1B visas for prospective employees at any time of the year. If a cap-exempt employer sponsors an individual for an H-1B, then a for-profit employer can sponsor the same individual for a second H-1B without going through the lottery. Premium processing can be used for both H-1B applications. Check out this previous Ask Sophie™ column for more details.
The companies you support have many options for recruiting and retaining top global talent!
My best to you,
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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.
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