Here’s another edition of “Dear 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.”
What is going on with recent USCIS furloughs and Trump’s H-1B ban? I handle recruitment for several tech companies. Is immigration happening? Who can I hire?
—Frustrated in Fremont
Immigration is still possible and I will explain how below. The administration continues to miss the mark with immigration policy. Trump’s U.S. unemployment “solution” of cutting off the stream of global talent to the U.S. is short-sighted. The administration is shooting America in the foot by walling off the promise of post-COVID economic revitalization and job-creation for Americans through the talent of immigrant entrepreneurs, investors, and talent.
USCIS just provided a 30-day furlough notice to more than 70% of its employees. Reporters have been reaching out to me every day requesting stories of affected immigrants and HR professionals; please sign up to share your immigration story with journalists.
Taking a step back; I’m actually quite appreciative of USCIS for merely starting to lay people off to reflect pandemic immigration demands as opposed to shutting down completely while it awaits a requested bailout of $1.2 billion from Congress. USCIS has a statutory mandate based on the Immigration and Nationality Act to continue to provide immigrant and nonimmigrant visas and I believe it would be illegal to stop.
Let’s also clarify last week’s executive proclamation. It only means you can no longer obtain H-1B, J and L-1 visas for those job candidates who are outside of the U.S. Both the latest executive proclamation halting nonimmigrant (temporary) visas and the one issued in April that halted immigrant visas (green cards) only apply to those visas and green cards that are issued to individuals and their dependents living outside of the U.S. who are applying for a visa or green card at an embassy or consulate in their home country.
It does not affect changes of status, extensions of status and amendments for individuals currently in the U.S. on J, H and L status. For more information about the green card moratorium, check out this Dear Sophie column from April. However, both moratoriums are in effect for at least until the end of the year and possibly longer if the administration extends them. The most recent proclamation placed a moratorium on the issuance of visas in these classifications:
- H-1B visas for specialty occupations.
- H-2B visas for temporary non-agricultural workers.
- J-1 visas for educational and cultural exchange, often used for trainees, interns and researchers.
- L-1 visas for managers and executives or specialized knowledge workers.
There are a few exceptions. Sponsoring employers can still obtain H-1B, H-2B, J-1 and L-1 visas for individuals living outside of the U.S. if the position involves the U.S. food supply chain or is in the national interest. The Trump administration is currently defining standards for what jobs are in the national interest, but generally they would be positions that are:
- Critical to the defense or national security of the U.S., law enforcement or diplomacy.
- Involved with providing medical care to individuals hospitalized due to COVID-19.
- Provide medical research to help combat COVID-19.
- Necessary for the immediate and continued economic recovery in the U.S.
The Trump administration plans to revisit the moratorium on nonimmigrant visas within the next month and then every 60 days after that to make modifications.
The moratorium on H-1B visas means the beneficiaries of this year’s H-1B lottery who are living abroad will most likely be unable to get a visa at consulates this year. That is unless the H-1B position involves work in an exempted category, which will be at the discretion of the consular officer reviewing the H-1B petition. However, if you have an H-1B beneficiary that was selected in this year’s lottery, continue to proceed with submitting your H-1B petition and responding to any Requests for Evidence. Even though these H-1B beneficiaries won’t be able to work under H-1B status unless they’re already in legal status in the U.S., these beneficiaries may be able to come to the U.S. and work in 2021 once the ban is lifted.
The following visas remain unaffected by the latest proclamation — at least for now. That means employers can continue to sponsor individuals for these visas whether those individuals are living inside or outside of the U.S.:
- E-2 visas for investors from treaty countries.
- E-3 visas for Australians in specialty professions.
- O-1A visas for individuals with extraordinary ability.
- TN visas for individuals from Canada and Mexico.
If you are reading this right now with a dream of coming to the U.S., please, let me urge you to keep trying to make that happen. In order to support you in doing so, we’re rolling out an Extraordinary Ability Bootcamp in the coming weeks to support individuals taking immigration into their own hands. This course will now include a breakdown on how to qualify for O-1A visas (which are not affected by the ban) and green cards such as EB-1A and EB-2 NIW, which don’t require immigration sponsorship. These programs are increasingly important to folks in tech as they don’t require a major financial investment or marriage. All in all, we want to help extraordinary people plant the seeds they need to in order to cultivate a case, backed by hearty evidence, to qualify for the alternative visa types outlined here today.
In addition to using E-2, E-3, O-1A and TN visas to recruit international professionals living outside of the U.S., employers could consider applying for either of the green cards that were exempted from the first proclamation: EB-1A green cards for individuals with extraordinary ability and EB-5 investor green cards.
Individuals who are the very top leaders in the fields of science, arts, education, business or athletics are eligible for an EB-1A. It has the toughest eligibility criteria, which includes receiving a major, internationally recognized award, such as a Nobel Prize, or meeting other criteria that demonstrate you are recognized and highly regarded in your field and how your expertise will benefit the U.S. For more information on the EB-1A, check out this overview and how to prepare.
It seems like the administration intends to restrict legal immigration further this year. They are taking a look at whether individuals currently in the U.S. on H-1B visas, EB-2 green cards and EB-3 green cards limit opportunities for U.S. workers. Particular focus will be placed on H-1B visas with the administration considering:
- Changes to the Labor Condition Application process for H-1Bs.
- More aggressively investigating companies for failing to meet labor conditions.
- Requiring H-1B beneficiaries to complete biometrics, including photographs, signatures and fingerprints.
- Possibly prioritizing the highest-paid H-1B workers who are subject to the annual H-1B cap aka lottery.
I feel a bit like a broken record, but it still needs to be repeated: Despite the administration’s efforts, immigration is STILL possible during this pandemic. Keep me posted on how things are going with your recruitment efforts. Remember: Where there’s a will, there’s a way.
All my best,
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.