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.”
We have several employees who are Ukrainian citizens; one is on OPT and the other is on STEM OPT. We want to make sure they can continue to live and work in the United States.
Our most immediate concern is for the F-1 student whose OPT status is expiring in June. We registered her in this year’s H-1B lottery and are hoping she’s selected this week to apply.
In the meantime, we heard that Ukrainians are eligible for TPS. Does that include F-1 students on OPT? Should our other Ukrainian employees also apply for TPS even though their work visas are good for a few more years? What is the process for applying for TPS?
— Strong Supporter
I applaud your efforts to plan ahead and support your team! TPS, which stands for Temporary Protected Status, is something I talked about in a recent podcast about the current state of immigration, along with a rundown of how President Joe Biden has proceeded so far on immigration reform.
USCIS just announced that it will be phasing in Premium Processing for more case types throughout 2022, including EB-1C multinational managers, EB-2 NIWs, I-539 changes of status for various types of workers (E-2, E-3), students (F, J, M) and some spouses, and even I-765 work permits. More details about the rollout should be published shortly, and changes will begin to take effect before the end of Q2. Stay tuned here for additional updates!
What is TPS?
To answer your questions on supporting Ukrainians in your team, let me give you a little background on TPS. The Secretary of Homeland Security, who oversees U.S. Citizenship and Immigration Services (USCIS), has the power to designate or extend TPS to a country if circumstances – such as an armed conflict or natural disaster — make that country unsafe. A citizen of a country designated for TPS is allowed to remain and work in the United States and travel abroad if that individual was present in the U.S. on the effective TPS designation date.
Secretary Alejandro Mayorkas designated Ukraine for TPS, effective on March 1, 2022, for 18 months. That means any Ukrainians in the United States as of that date are eligible to apply for TPS (last day to apply is August 28, 2022.) If TPS is granted, individuals may remain and work in the United States through September 1, 2023. At that time, Mayorkas can determine whether to extend the current TPS designation for Ukraine or redesignate TPS eligibility to those who arrived in the United States after March 1, 2022.
Ukraine joins 12 other countries that currently have TPS designation: Myanmar, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela and Yemen.
Who should apply for TPS?
Ukraine’s TPS designation means any Ukrainian national who was in the United States as of March 1, 2022, can apply for TPS. That means all of your employees from Ukraine, including those individuals on OPT and STEM OPT, are eligible to apply for TPS. In fact, I often recommend to people that they apply even if they currently have another valid immigration status – it’s always good to have a backup. And while this may be a long way off, Biden noted in his State of the Union earlier this month that he’s committed to creating a pathway to citizenship for Dreamers, TPS holders, essential workers and farmworkers.
I also recommend that your company continue to press ahead with supporting your employees through immigration, whether that be offering to help them file for TPS or STEM OPT extension, or sponsoring them for an H-1B, another non-immigrant work visa or a green card.
Consider STEM OPT
Your employee who is currently on OPT — and whom you registered for the H-1B lottery — may also be eligible for a two-year STEM OPT extension. She would qualify if she earned her degree in an approved STEM field, which was expanded earlier this year to include fields such as business analytics, climate science, cloud computing, data analytics and financial analytics.
As you probably know, if your employee qualifies for STEM OPT — and if she doesn’t get picked in this year’s H-1B lottery, your company will have two more years to register her for the lottery.
Your company can also register your other STEM OPT employee in the H-1B lottery as long as they remain in valid immigration status. Depending on how much time that individual has left on their STEM OPT, TPS could provide more chances for your company to register that individual in the H-1B lottery or find another immigration option.
How to apply for TPS?
While applying for TPS can seem fairly straightforward, I suggest consulting with an immigration attorney, especially if the individual was in the United States without legal status at the time that TPS was designated.
To get TPS for Ukraine, an individual must:
- Be a citizen of Ukraine or a person without nationality who last permanently resided in Ukraine.
- File during the initial registration 120-day period, which runs through August 28, 2022.
- Have been physically present and continuously living in the United States since March 1, 2022.
If an individual, who was living in the United States, made a trip abroad and was outside the U.S. on March 1, 2022, USCIS will determine whether an exception applies in your case if you disclose all absences from the United States since that date.
Also, individuals may be ineligible for TPS if they have been convicted of a felony or two or more misdemeanors in the United States or are otherwise inadmissible based on security-related or other grounds.
Thank you for reaching out with these important questions to support our global community,
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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!
Also published on Medium.