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.”
I’m currently on an F-1 student visa. I’ll receive my bachelor’s degree in computer science in December and will apply for OPT. At this point, I would like to stay and work in the U.S. Do you have any tips on negotiating visa and green card sponsorship? Any other tips I should keep in mind as I start contacting prospective employers?
— Shy Student
Summary: Be upfront and ask about visa and green card sponsorship. You may find it easier than you think given that employers are looking to hire more international talent and are sponsoring employees for green cards sooner, according to a recent report. Know the process for applying for OPT, a 2-year STEM OPT extension, the H-1B lottery process, backup visa options in case you are not selected in the lottery, and green card options. For the latest immigration news and our upcoming webinars, subscribe to our monthly newsletter.
Full Dear Sophie article:
I appreciate you reaching out to me with your questions. I absolutely have plenty of tips for you! A main thing based on the current culture of work and the great resignation is:
Be Upfront About Green Card Sponsorship
I recently chatted with Robert Bouchard, who is known as “The H-1B Guy.” Bouchard offered perspective on recruitment and compliance issues for H-1B visas and employment-based green cards.
Bouchard and I both agree on the importance of being upfront with a company from the start about your need for sponsorship. “If an employer says they don’t understand or can’t do that, then you need to move on” and not waste your time, says Bouchard. He often emphasizes to recruiters that the cost—even when including legal fees—of sponsoring an individual far outweighs the cost to a company of a position going unfilled.
Once you start reaching out to prospective employers, I think you’ll find that you’re in a great position to discuss visa and green card sponsorship. According to Envoy’s 2022 Immigration Trends Reports, 40 percent of employers surveyed anticipate relying more heavily on F-1 international students and J-1 exchange programs for talent.
Of the employers who said they will become more reliant on these programs, 49 percent cited the specific skills and training they are hiring for are best found in recent graduates. In addition, employers are using green card sponsorship as a key recruitment and retention strategy for international talent. According to the Envoy report, 66 percent of survey respondents said their company typically starts the green card application process for sponsored employees within one year of the employee joining the company and 25 percent do so immediately, which is an 11 percent increase from 2021.
Know the Process
Knowing the process for obtaining OPT (Optional Practical Training) and STEM OPT and entering the H-1B lottery will enable you to discuss options with prospective employers. That will be particularly helpful with prospective employers that have little to no experience with immigration.
The earliest you can apply for OPT is 90 days before you get your degree, but no later than 60 days after you get your degree. Your OPT Employment Authorization Document (work permit) will be valid for one year. Because computer science is in the STEM field, you will be eligible to get a two-year extension of OPT, STEM OPT.
The earliest you can apply for STEM OPT is 90 days before your OPT employment authorization is set to expire. I recommend you submit their application as early as possible. For STEM OPT, your employer will need to be registered in E-Verify – both you and your employer will need to complete a training plan for the new work permit to be applied. Take a look at this Dear Sophie column for more details.
With a total of three years of employment authorization under OPT and STEM OPT, your employer will be able to register you in the annual H-1B lottery each March for the next three years while you are in the U.S. maintaining status.
The annual 85,000 cap on H-1B visas and the demand for H-1Bs that far exceeds the supply necessitates the annual lottery process. Private employers are subject to the annual cap and lottery process. However, you should know that government agencies, universities, and nonprofits connected to universities are exempt from this annual cap and lottery, which means they can sponsor individuals for an H-1B at any time of year! I’ll go into more detail about the cap-exempt H-1B visa in a bit.
Since 2020, when U.S. Citizenship and Immigration Services (USCIS) began the H-1B electronic registration process for the lottery, the number of participants in the annual lottery has dramatically increased while the number of H-1B visas available has not. Before 2020, employers had to submit a completed H-1B application to enter an employee or prospective employee in the lottery. That required a much bigger investment compared to the current $10 registration fee that employers must now pay to enter an employee or prospective employee in the lottery.
This year, more than 483,900 H-1B registrations were submitted, which was a 57 percent jump from the number of registrations USCIS received in March 2021. Before the electronic registration process was implemented, USCIS received slightly more than 201,000 H-1B applications for the lottery in 2019.
Be sure to check out my podcast episode on what makes a strong H-1B application to position yourself for success.
Know Your Options for Green Card Sponsorship
Knowing your options for other work visas and the requirements for each will help you devise a backup plan if you’re not selected in the H-1B lottery. Keep in mind that there are only three work visas that allow you to have dual intent, which means even though these work visas are temporary, non-immigrant visas, you can have immigrant intent, which means you intend to stay permanently in the United States by applying for a green card:
- H-1B specialty occupation visa
- O-1A extraordinary ability visa
- L-1 visa for intracompany transferees
While O-1A is the quickest visa to obtain, it’s also the most difficult to qualify for compared to the H-1B, which generally only requires a candidate to hold at least a bachelor’s or higher degree. Oftentimes, it takes individuals, particularly recent grads, a few years to build up skills and accomplishments that would make them eligible for the O-1A. Meanwhile, you would only meet the qualifications for the L-1 visa if you worked for a multinational company abroad as a manager, executive, or employee with specialized knowledge for at least a year, and the company sponsored you to either work in its office in the U.S. or set up an office in the U.S.
If you do not immediately qualify for the O-1A or L-1, but qualify for other work visas aimed at individuals from specific countries—the E-2 specialty occupation visa for Australians, H-1B1 specialty occupation visa for Chileans and Singaporeans, or TN visa for Canadians and Mexicans—your employer could continue to register you in the annual H-1B lottery.
If you don’t qualify for any of these work visas, talk to your employer about sponsoring you for a cap-exempt H-1B visa. Individuals we’ve worked with have had great success with the Open Avenues Foundation, which offers a cap-exempt H-1B program.
Open Avenues partners with colleges and universities to create H-1B positions for international professionals in STEM and business fields to lead university students in project work tied to a cap-subject employer. The foundation hires these professionals under a cap-exempt H-1B visa to work five hours per week in this teaching role. Once USCIS approves that H-1B, the professional’s private, cap-subject employer can file for a concurrent cap-exempt H-1B. If you decide to pursue this course, you could increase your chances of success if you can work with your alma mater to develop such a teaching opportunity. You should also be aware—and make your employer aware—that your employer will be required to pay for all government filing, legal, and other fees associated with both H-1B applications.
Once you have a dual intent visa, your employer can sponsor you for an employment-based green card:
- EB-1A extraordinary ability green card
- EB-2 NIW (National Interest Waiver) green card
- EB-2 advanced degree or exceptional ability green card
- EB-3 green card for skilled professionals
The EB-1A and EB-2 NIW are the only two employment-based green cards that do not require an employer sponsor, so you can apply for either of those green cards on your own whenever you meet the requirements!
You’ve got this!
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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. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!