by on 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.”
Dear Sophie:
I work in people ops at a startup. We have no experience with H-1B visas. We recently received applications for job openings from a couple of strong applicants who are on H-1B visas with other companies. What should we know about hiring an H-1B visa holder?
One of the job applicants will need to have her H-1B renewed next year. What should we know about filing for a renewal? Are H-1B transfers and renewals still possible given that H-1B visas are no longer being issued at consulates?
—Newbie in Newark
Dear Newbie,
Exciting that your company is hiring. Congrats! Yes, H-1B transfers and renewals are still possible. The only current restriction is that H-1B visas can generally not be issued to people outside the U.S. right now. They were halted through at least the end of 2020 under last month’s executive proclamation.
However, new H-1B petitions, transfers, extensions and amendments for individuals currently living in the U.S. continue to be issued, so this is possible. For more details on H-1B transfers and extensions, as well as H-1B amendments, check out my recent podcast on H-1B Nitty Gritty.
Because of the complexities of the H-1B transfer and extension process and timing as well as the high stakes, I recommend that companies — particularly early-stage startups — work with an experienced immigration attorney, even before extending the offer to your candidate.
Although a candidate currently on H-1B status might technically be able to start working when your company receives an I-797C receipt from USCIS for the pending petition, most companies and candidates usually want to play it safe these days. It’s possible to work with your legal team to craft the start date for the future so that your candidate will find out if the transfer has been approved before being required to start, and still allowing time to give notice to their current company. This minimizes their risk and demonstrates that you care about your team.
The first thing you want to check is whether the candidates went through the H-1B lottery process in the past. The number of H-1B visas issued each year to for-profit companies is generally capped at 85,000 each year. These employers must register each prospective H-1B employee in the annual H-1B lottery in the spring. Colleges and universities, nonprofits affiliated with colleges or universities, nonprofit research organizations and government research organizations are exempt from the H-1B cap and lottery process. If either of the job candidates worked for a cap-exempt employer, the H-1B visa cannot be transferred to your company, but the individual might be eligible for concurrent, part-time employment at your startup in addition to that other position, without going through the lottery again.
Due to the 2017 “Buy American, Hire American” executive order, immigration officers have intensified their scrutiny on all initial H-1B petitions, transfers, extensions and amendments. The denial rate for H-1B petitions hit nearly 42% in the second quarter of fiscal year 2020, more than double the denial rate in FY 2016. Whatever attorney you choose, I’m proud to say that our team’s thorough processes and communication demonstrate to me how valuable those factors are in reducing the chances of an RFE for your candidates.
A couple of things you’ll want to keep in mind as you enter this process is whether your company will sponsor the H-1B visa holder for a green card and timing. The H-1B is a temporary visa that is valid for a maximum of six years: typically 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. There are ways to recapture time, but for extensions beyond the initial six years, it’s important to start green card sponsorship early. For more details on employment-based green card options, check out the Ask Sophie™ column from a few months ago.
The process of hiring an individual on an existing H-1B is much the same as filing an initial H-1B petition minus the lottery and the restrictive start date. Your attorney will support you in the following process:
Since this is your company’s first H-1B, the company will need to have its Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor . That process typically takes about a week.
Your company will then need to get a Labor Condition Application (LCA) certified by the Labor Department. An LCA requires your startup to promise to pay at least the prevailing wage for the position and location of the position and ensure that the employment conditions won’t negatively affect U.S. workers. Employers don’t need to submit evidence for an LCA but must post a copy of the H-1B notification within your company, which can be done electronically, as well as keep all supporting documents and make them available for public viewing. Typically, the Labor Department makes a decision within seven business days on whether to certify an LCA.
You and the prospective employee should assemble the necessary documents for the H-1B petition as soon as possible. There are many documents you can start gathering now. Whether each one applies depends on your specific situation.
The prospective employee will generally need:
- Valid passport with H-1B visa stamp.
- I-797 approval notice.
- I-94 arrival/departure form with unexpired departure date.
- Resume or CV.
- Diplomas and certificates.
- Transcripts.
- Academic evaluation.
- Letters of recommendation.
Your startup will generally need:
- Offer letter containing job title and salary.
- A detailed description of position responsibilities and duties.
- Evidence that the startup is a real company, such as company brochure or screenshots of the company website, marketing material or pitch deck, etc.
- Proof that the startup can pay the required salary.
- For very early-stage companies, more documents might be necessary.
Your company will need to fill out and submit Form I-129 (Petition for a Nonimmigrant Worker) along with all evidence and supporting documents to U.S. Citizenship and Immigration Services (USCIS). Check out the Ask Sophie™ column from a few months ago in which I discuss how to craft a strong H-1B petition.
I recommend filing the petition with premium processing. For a $1,410 fee, your company can have USCIS make a decision on the petition within 15 days. If USCIS issues a Request for Evidence (RFE), it will make a decision within 15 days of receiving your response to the RFE. Without premium processing, it can take more than 18 months to get a decision — and if USCIS does not receive emergency funding from Congress and must furlough workers, processing times will be further impacted. Please note, USCIS filing fees are slated to increase in Fall 2020.
As for H-1B extensions, they can be filed up to six months before the H-1B is set to expire. The process and tips for crafting a strong H-1B petition apply to H-1B extensions as well. Your company will need to file a new LCA to the Labor Department. The H-1B visa holder and your company will need to gather the same documents listed above.
If your company is sponsoring the H-1B visa holder for a green card, the H-1B can be extended beyond six years in one-year intervals if the green card petition was filed at least 365 days before the six-year expiration date. Three-year extensions on H-1B visas are available for individuals who have been approved for a green card, but a green card number is unavailable due to annual and per-country quotas.
Wishing you all the best with navigating the H-1B process!
Sophie
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. 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 here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!
