Ask Sophie™: Can you provide guidance and counsel for companies to support Ukrainian team members who are evacuating to the U.S.?

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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Dear Sophie,

Help! Can you please provide guidance and counsel for companies to support Ukrainian team members who are evacuating to the U.S.? Greatly appreciated!

— Magnanimous VC

Dear Magnanimous,

The practice of immigration is subject to the ever-changing tides of geopolitical changes, and now, the battles in Ukraine. Ultimately, immigration is all about the human journey to freedom. We transcend border walls, the circumstances of our births, and current conditions (sometimes literally, sometimes figuratively) on our journeys to the birthright of actualizing our human potential.

It’s easy to feel fear when we face the uncertainty of world events, including everything happening in Ukraine. One way to get out of our own heads and get back to listening to our hearts is through acts of service. By heeding the call to support one another to find safety, security and the freedom to live our dreams, our actions will be seeded with love in the microcosm and always supporting the macrocosm.

Due to the flood of inquiries we’ve been receiving on the topic of Ukrainian immigration to the U.S., below are some guidelines for how U.S. founders, tech companies, and VCs can support Ukrainian citizens with U.S. immigration.

Namaste,

Sophie

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10-step checklist for U.S. tech companies to support Ukrainians with immigration

1. Make a list of all of your team members who are Ukrainian citizens.
   1. Indicate their last known location; whether they have any other citizenships; whether they have a visa to the United States and, if so, what category it is in; whether you are aware of any family members; whether they were employees or contractors, and any other notes.
   2. If you have contact with these individuals, make a plan for backup communication methods if necessary.
   3. Ukrainians can safely store and share documents digitally through A26 Backpack from UC Davis.
2. Help with travel arrangements.
   1. If any of these individuals who are outside the United States currently have valid visas that allow them to enter the United States in any status, support them with travel arrangements to come to the United States.
   2. You can go above and beyond by providing food and shelter for their trip.
   3. In parallel, talk to your immigration attorney ASAP about what arrangements can be made to support them after they arrive, such as a change of status.
   4. The U.S. government has already made an exception in the national interest and Ukrainian citizens with valid visas do not need to have COVID vaccinations or a negative COVID test to enter the United States.
3. Support qualifying folks with ESTA applications.
   1. If any of these individuals have dual citizenship in a country that allows for ESTA, the U.S. Visa waiver program, support them in applying for this electronic travel authorization to come to the United States.
   2. Keep in mind that people cannot qualify for ESTA based on Ukrainian citizenship.
4. Consider intercompany and investor visa options.
   1. If you have any subsidiaries in Ukraine, consult with an immigration attorney immediately about L-1 visas; use a blanket petition if possible. Be sure to use premium processing.
   2. If you are a majority-Ukrainian-owned company in the United States, talk to your attorney about the E-2 visa for any Ukrainian citizens who have essential skills.
   3. For the E-2, unlike the L-1, there is no requirement that the Ukrainian citizens have worked for your company at least one year out of the last three years.
5. Talk to your global payroll provider about third countries.
   1. If you are using a global payroll solution to contract with workers in Ukraine and you want to bring them to the United States, talk to your provider about routes to the United States for these individuals – either as contractors or as your employees.
   2. These options could include, but are not limited to, an L-1 for intercompany transferees (although that is not guaranteed to be approved.)
   3. If you do not have a U.S. entity, an H-1B with or without the lottery with your global payroll solution serving as the agent/petitioner could be an option as well. (More H1B options below, including details for different paths if you do have a U.S. entity.)
6. Help your team get visas in third countries.
   1. If you are temporarily moving your contractors to a third country from Ukraine and using your global payroll solution to temporarily employ them there, sponsor these workers for U.S. work visas to get them to the U.S. after their time in the third country.
   2. They may be able to apply for U.S. visas at the consulate in that third country.
7. Consider all H-1B options.
   1. If you are considering H-1B, there are two main routes. The lottery is happening through March 18, 2022. You can petition for any qualified potential workers you would like to sponsor.
   2. Additionally you can consider the cap-exempt H-1B option through a nonprofit such as Open Avenues. Then work with your immigration lawyer to obtain an unlimited number of H-1B worker visas at any time of year without the lottery.
8. Consider additional options for business owners.
   1. Ukrainian startup founders can consider options such as the O-1A for extraordinary ability, International Entrepreneur Parole, and the E-2 investor visa as Ukraine and the United States have a treaty of investment.
   2. Some people want to know if they can help Ukrainians with the EB-5 program, but the timing doesn’t really work for this because an EB-5 can take multiple years just to get the first approval. Therefore, starting an E-2 business might be a more effective short-term option and it can be followed by a variety of green card sponsorship pathways.
9. Humanitarian options can be challenging.
   1. Filing for asylum requires somebody to already be in the United States and to have experienced persecution or have a well-founded fear of persecution based on very narrow grounds. Even for somebody who qualifies, it can often take many years for their asylum case to get adjudicated, so asylum-seekers often feel like they are in limbo for a long time.
   2. Another option called Humanitarian Parole was heavily used by individuals fleeing Afghanistan in the summer of 2021. USCIS is extremely backlogged with these requests.
   3. Therefore, the priority – where possible — must be to find non-immigrant visa options where the USCIS petition permits premium processing.
10. If you have any employees and international students in the United States who are already working or doing an internship for your company, talk to your immigration attorney ASAP about supporting these individuals with longer term non-immigrant and green card solutions so they can safely stay in the U.S.
    

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