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 do I and our founding team at our early-stage startup need to be aware of so we can be on track for the next H-1B lottery for the STEM OPT, candidates, we’re hiring?
— Strong Strategizer
Congrats – it’s only August and you are on top of things! Glad you’re planning now so you can be on track and have smooth seas and clear skies ahead for the next round of H-1Bs. It’s super important now as we just had some recent H-1B lottery updates and while U.S. Citizenship and Immigration Services (USCIS) is still working through pretty deep case backlogs. By starting now, you can maximize your ability to retain your talent.
Just this week, USCIS announced that they are done selecting people for the April 2022 lottery. You saw me talk a lot about this in spring – there was an electronic registration process in March for all the people who wanted to be chosen for H-1Bs in April. They were all hopefuls for an October 1, 2022 H-1B start date, at the start of the federal government’s 2023 fiscal year.
For the past several years since USCIS established the March electronic lottery system, they underestimated the total of selected H-1B registrants whose petitioners would follow through and submit the full I-129 petition for the H-1B by the June 30th annual deadline. So, in prior years, USCIS held multiple registrant selection processes, in July, September, and beyond, to fill the remaining spots available for H-1Bs for the fiscal year before the government reached the limit.
We were all surprised in July this year when no second selection process occurred. Well, this week USCIS confirmed that they received enough H-1B petitions to meet this year’s limit, and they changed everybody else’s status in their online system to “Not Selected” this week! Likely they’re getting better statistical estimates of the petition rate and how many registrants to select to maximize the 85,000 total annual H-1B cap-subject visas, and next year and beyond, it is likely that all registrants will be selected in March and that no further selection periods will be held throughout the summer or fall.
Let me dive right into the things you should keep in mind when applying for STEM OPT and preparing for next year’s H-1B lottery. As you know, STEM OPT (Optional Practical Training) is the two-year extension of OPT for individuals on an F-1 student visa whose field of study is on the list of STEM-designated degrees. Listen to my podcast episode on applying for OPT and STEM OPT.
Timing is important!
The earliest a candidate can apply for STEM OPT is 90 days before the current 12-month OPT EAD (Employment Authorization Document) is set to expire. I recommend that they submit their application as early as possible. Your company will need to be registered in E-Verify and you’ll need to complete their training plan for them to apply for the new work permit (more details below!). The receipt notice automatically authorizes an extension for work authorization for 180 days for I-9 verification purposes.
Depending on when the candidate’s two-year STEM OPT EAD ends, they may have one or two chances to be registered in the annual H-1B lottery in March. If the H-1B lottery doesn’t work out, or you want to get the candidate another work status, it’s also possible for your startup to sponsor them for another nonimmigrant work status so they can continue to live in the U.S. and work at your startup.
If your candidate is selected in the H-1B lottery and their STEM OPT EAD will expire before the H-1B start date, they can continue working under what’s called the “cap gap” extension. Your company would need to submit an H-1B petition on their behalf before their STEM OPT EAD expires. Optimizing for everybody’s peace of mind, I recommend filing H-1B applications with premium processing, particularly if you need cap gap. With that, for $2,500, USCIS will take action on the case within 15 calendar days.
I recommend that you work with an immigration attorney to guide you and your candidate through the STEM OPT and H-1B lottery process (and the H-1B application process if you’re selected!), keep you posted on deadlines, and execute a backup plan if you aren’t selected in the lottery.
Walking through the process
It sounds like your candidate meets the STEM OPT eligibility requirements in that they:
- Are currently in OPT
- Have received a bachelor’s, master’s, or doctoral degree in a qualified STEM field
- Have a job offer from an employer that involves at least 20 hours of work per week
For STEM OPT, your leadership team must:
- Make sure your startup is enrolled in the E-Verify employment eligibility verification program.
- Support your candidate by completing Form I-983 (the training plan for STEM OPT students). (Here are detailed instructions for filing out Form I-983.) Among the things the form requires are:
- The name of the candidate’s university and STEM degree.
- The university’s Designated School Official (DSO) and the university’s SEVIS (Student and Exchange Visitor Information System) code.
- The start date (the day after the OPT completion date), how many hours per week they’ll be working, and the salary.
- How the work they’re doing at the company will enhance what they learned during their degree program.
- Your verification that the company has enough resources and someone to train the candidate and supervise their growth within their field of study.
- That they will not replace an existing temporary or permanent U.S. worker.
Once you complete Form I-983, your candidate will need to submit it to their university’s Designated School Official (DSO), who can authorize them for STEM OPT by signing a new Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status) and updating their record in SEVIS. The DSO will keep the Form I-983 on file. The candidate will need to submit a copy of the updated and signed Form I-20 to USCIS.
The final step is for your candidate to fill out Form I-765 (Application for Employment Authorization) and submit it, supporting documents (such as a copy of the Form I-20 and proof of the eligible STEM degree) and the filing fee to USCIS within 60 days of the date the DSO enters the recommendation for the STEM OPT extension and again up to 90 days before the current OPT EAD card expires. You can also submit Form I-765 online if you create a USCIS account or sign in to the USCIS account, which I recommend because it’s much faster. Having a USCIS online account will enable you to monitor the latest updates with the application. Your company’s immigration attorney can also support your candidate with this process.
Whether filing Form I-765 electronically or in paper copy, your candidate will receive a receipt notice with a receipt number, which has the date that USCIS received the application. If you file electronically, your candidate will receive a receipt notice immediately.
It takes how long?
While filing an I-765 online is quicker and easier than sending a hard copy of the I-765 application to USCIS, filing electronically does not speed up the time it takes for USCIS to make a decision. Currently, it can take five months or more for USCIS to process an employment authorization application. Not to worry: If the STEM OPT I-765 application was filed on time, your candidate can continue to work for 180 days after the OPT EAD expires while the STEM OPT is pending with USCIS.
Your candidate should keep the receipt notice from the Form I-765 application handy as proof they can work, and provide it to you so you can update your Form I-9 (Employment Eligibility Verification) once their OPT expires.
USCIS will send the STEM OPT EAD using first-class USPS mail. From the time the online USCIS Case Status indicates the request was approved, the candidate should expect to wait a week or more for delivery of their EAD card. It’s great you’re starting early, because if STEM OPT is not approved within 180 days of the OPT expiration date, the candidate must stop working. So continue to be proactive!
And now, the lottery…
When the demand for H-1B visas outstrips the annual cap of 85,000—as it has for the last several years—USCIS has a random online lottery process. The employer of an individual who is selected in the lottery can file an H-1B application on that person’s behalf.
In 2020, it became easier to enter individuals in the H-1B lottery. Since then, the number of people registered for the lottery has increased dramatically, thereby reducing the chances of being selected.
USCIS usually opens up the online H-1B registration period for the lottery at the beginning of March. The registration period remains open for several days. Your startup will need to create a USCIS online account (it’s the same link for creating an individual account) if it doesn’t already have one. Your immigration attorney will register your candidate using the USCIS account. Each company can only register each individual once or else be disqualified.
By the end of March, USCIS will notify employers if their H-1B registrants were selected in the lottery. Employers then have until June 30 (90 days) to file and get approval from the U.S. Department of Labor for a Labor Condition Application (LCA), which needs to be included with the H-1B application, supporting documents, and fees submitted to USCIS.
You may also want to listen to my podcast on what it takes to submit a strong H-1B application, as well as look at this Dear Sophie column in which I talk about options to consider if you’re not selected in the lottery.
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!
Also published on Medium.