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 a postdoc engineer who started STEM OPT in June after failing to get selected in the H-1B lottery.
A colleague suggested that I apply for an EB-1A for extraordinary ability green card, but I have not won any major awards, much less a Nobel Prize. Would you tell me more about the EB-1A?
— Bashful in Berkeley
Thank you for reaching out to me! Most people who get green cards through the EB-1A process are far from achieving a Nobel Prize — don’t worry, it’s still possible!
My law partner, Anita Koumriqian, recently talked with Lanie Denslow, a cultural competence and business protocol consultant who helps companies and professionals navigate cultural differences in today’s complex, fast-moving and global business environment. In the Immigration Law for Tech startups podcast episode, they talked about how culture drives behavior and how we need to understand the culture an individual comes from in order to understand their actions and approaches.
Along those lines, I often find that many international professionals and students who qualify for an EB-1A are extremely modest and underestimate their abilities and achievements. In American culture, professionals are expected to promote their abilities and accomplishments or personal branding. While that practice is accepted in the United States, it’s frowned upon in many other countries, where modesty is more culturally valued.
That means many international professionals and students — perhaps even you — may feel out of their comfort zone when submitting an application for an EB-1A extraordinary ability green card and gathering the five to eight recommendation letters from individuals who are qualified to assess their work and achievements.
Before I dive in further, I suggest you consult an experienced immigration attorney who can assess whether you would be a strong candidate for an EB-1A or if other options would better suit your situation and goals. You should consider talking to your employer about sponsoring you for a green card, and know that you can also file a petition on your own. The EB-1A and EB-2 NIW (National Interest Waiver) are two employment-based green cards for which the beneficiaries can self-petition (without an employer sponsor).
Qualifications for an EB-1A
To qualify for an EB-1A, you must meet any three of the following:
- You have received nationally or internationally recognized prizes or awards for excellence. These awards should be post-university level and might be able to include such things as VC funding, pitch competitions and international hackathons.
- You are a member of associations in your field that are difficult to get into, such as invitation-only business clubs or mentorship organizations or an advisory role at an accelerator or incubator.
- Articles have been printed about you in professional or major trade publications, other major media, or books (newsletters, press releases that were never published in a major publication and student-run university publications usually don’t count). This can include citations to your peer-reviewed articles.
- You have judged the work of others, either individually or on a panel, beyond a university-level competition. Serving as a judge for a hackathon or other engineering competition or making hiring decisions at a tech company could also be considered.
- You have made original contributions of major significance to your field as shown through coverage in national or international media, your publications have received a significant number of citations, or your work is used by others through contracts with companies, licensed technology and patents. This can include citations to your peer-reviewed articles.
- You have written articles that have appeared in professional, scientific or major trade publications or other major media. Blogs and articles that do not list you as the author often don’t count here.
- Your work has been displayed at artistic exhibitions or showcases, which, in the tech world, applies primarily to UX/UI designers.
- Your performance in your company is of a leading or critical role. You don’t have to be the company CEO or other C-level performer — you could be a project manager or in charge of product development.
- You command a high salary compared to others in the field, ideally in the top 10% of salaries in the field. We can consider the valuation of any equity you may hold here.
- Your commercial successes in the performing arts, which, again, might not apply to you.
Since you recently started your STEM OPT 24-month extension, I wanted to let you know about the timing for EB-1As. Premium processing is available when filing an EB-1A petition. For an extra fee, U.S. Citizenship and Immigration Services (USCIS) will process your petition within 15 business days. Without premium processing, USCIS can take 15 months or more to process an EB-1A petition.
Filing EB-1A concurrently with an EB-2 NIW
Some of my clients who have a borderline EB-1A case opt to apply for an EB-2 NIW green card at the same time in the event that they are denied an EB-1A. For an EB-2 NIW petition, you will need to show that your abilities and work are in the national interest, such as improving healthcare, creating jobs or substantially contributing to the U.S. economy.
Talk to an immigration lawyer for either one of these processes — your total wait time and whether this strategy is compatible with the expiration of your STEM OPT is also based on your country of birth and other factors.
Best of luck on whatever path you take!
Have a question for Sophie? 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. 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.