Sophie Alcorn, attorney, author and 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.
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I recently received F-1 STEM OPT work authorization to continue working at the startup I co-founded about a year ago while on OPT. My startup will register me for the H-1B lottery in March, but I’m worried that I won’t be selected. What is the latest with how the USCIS will run the H-1B lottery? Plus, I’ve also been reading that the immigration application fees will increase substantially, so I would like my startup to sponsor me for a visa and possibly a green card as soon as possible before the fees go up. What do you recommend?
— Frugal Founder
Thanks for reaching out to me with your question. I’ve got you! For an early-stage startup, every decision is critical as Alfonso de la Nuez, an immigrant founder with an $800 million+ acquisition, recently shared with me in my podcast. Check out my video about the U.S. Citizenship and Immigration Services’ (USCIS) latest update last night — the lottery will be more fair for early-stage startups and international students and founders: one person, one chance!
You’re right that the USCIS is expected to publish a final rule in the Federal Register this week that will significantly increase application fees. Separately, premium processing fees will also increase in February. The USCIS has confirmed that the H-1B registration fee will remain $10 this year and the lottery will be open March 6 through March 22. You can learn about these updates to the upcoming lottery in our complimentary educational webinar!
For those who qualify, getting approval for an O-1A extraordinary ability visa is a relatively quick process, particularly with premium processing. The Biden administration has made qualifying for the O-1A much easier for startup founders in the STEM field. But the O-1A has remained largely unchanged since it was created by the Immigration Act of 1990, so Lindsay Milliken, an immigration fellow at the Institute for Progress (IFP), is pushing for the USCIS to update its O-1A guidance for startup founders, especially in the area of nontraditional achievements.
The corollary to the O-1A visa, the EB-1A extraordinary ability green card, generally has the quickest processing time among all the employment-based green cards. Keep in mind the bar is high for qualifying for the EB-1A green card, so many recent grads and first-time founders in the STEM field find success with the EB-2 NIW (National Interest Waiver), which can take longer due to green card backlogs.
If you haven’t already, I recommend you consult an immigration attorney who can not only determine whether you qualify for the O-1A and the EB-1A or what you need to do to qualify but can also devise a strategy based on your goals and situation. If you know you want to remain in the U.S. to grow your startup, you can apply concurrently for a work visa and a green card.
Before I discuss the O-1A visa and EB-1A green card in more detail, let’s take a look at the proposed fee increases.
Prepare for fee increases
The USCIS funding comes primarily from the fees it charges for immigration and naturalization benefits. That’s why the USCIS continues processing most benefits even during a federal government shutdown over the budget.
It’s been eight years since the USCIS increased the fees for most immigration and naturalization benefits, so the agency is expected to publish the finalized list of new fees very soon. For some services and benefits, the USCIS also adjusts fees based on inflation every few years.
The premium processing fee is one that’s subject to an inflation adjustment every two years, which is why the premium processing fees are planned to increase this February. The USCIS published a final rule in the Federal Register in December with the new fees, including the following:
The fee increases that the USCIS proposed in 2023 are expected to go into effect April 1. Here are the likely fee increases that may impact you:
USCIS officials state that the H-1B lottery registration fee will remain at $10 for this year’s lottery.
Now, let’s dive into the O-1A!
Pursue an O-1A
In January 2022, the Biden administration instituted policy changes that made it easier for individuals, particularly students in STEM fields, to qualify for both the O-1A extraordinary ability visa and the EB-2 NIW (National Interest Waiver) green card to work and remain in the U.S.
According to USCIS data, the total number of O-1A petitions received by the USCIS increased by 30% from FY 2021 to FY 2023, and the total number of O-1A visas approved for individuals working in STEM fields increased by more than 28% in FY 2023 from FY 2021. Unfortunately, the data does not indicate how many O-1A petitions were received for STEM workers. Meanwhile, the total number of EB-2 NIW green card petitions submitted to USCIS for individuals in STEM fields nearly tripled from 7,670 in FY 2021 to 21,240 in FY 2023.
The O-1A requires you to meet at least three of eight criteria. The criteria include things such as winning a national or international award, which since the 2022 policy change now includes a PhD scholarship or dissertation award. (Previously, university-level accomplishments did not carry much weight toward meeting the O-1A criteria.) Take a look at this previous column in which I dive deep into how a bootstrapping founder can qualify for an O-1A and this column where I detail how to meet each of the O-1A criteria.
Your company can register you for the H-1B lottery next year, too, if you need more time to expand your list of accomplishments to qualify for the O-1A.
Pursue an EB-1A or EB-2 NIW
As I mentioned earlier, the requirements for an EB-1A green card are more stringent than those for the EB-2 NIW green card. Generally, it’s easier to qualify for the EB-1A green card from an O-1A visa compared to the H-1B visa. That’s because most of the eligibility requirements for the O-1A and EB-1A overlap. Take a look at this Ask Sophie column for more details about applying for the EB-1A.
However, if you don’t yet qualify for the EB-1A, consider applying now for the EB-2 NIW. Take a look at this EB-2 NIW case study for insight into submitting a strong petition. If you apply for the EB-2 NIW and were born in India or China, I suggest you apply for the EB-1A when you qualify for it. Due to the numerical and per-country caps on green cards, individuals born in India and China face long waits, particularly in the EB-2 and EB-3 green card categories. Since the EB-1A is a first-preference green card, the wait times for individuals born in these two countries are generally shorter than for EB-2 (second-preference) and EB-3 (third-preference) green cards.
The date the USCIS received your EB-2 NIW petition is your priority date, which determines your wait in any green card line. That means you can apply your EB-2 priority date to your EB-1 even though you submit your EB-1A petition later. Listen to this podcast for more information about how priority dates work.
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