Dear Sophie: Which immigration options are best for a decentralized team in the US?

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.”

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Dear Sophie,

We just raised a $20 million Series A, and we need to hire more engineers to fully develop our product.

In addition, we’d like to bring our overseas PEO contractors to the States to join us more locally and in-timezone.

We’re excited about being decentralized — which immigration options are best for us?

— Elated Entrepreneur

Dear Elated,

Congrats on your latest funding milestone! Your funding comes at an opportune time: The recent spate of layoffs and hiring freezes at many tech companies presents a great opportunity for you to scoop up top global engineering talent. Plus, I’m not surprised you raised even in this “environment” — we’re seeing a lot of that going on despite much of the news!

A few suggestions

Before I dive into your question, let me make a few suggestions: Consult both a corporate attorney and an immigration attorney.

A corporate attorney can help you set up a distributed work policy if your company doesn’t already have one. Corporate, employment and privacy laws differ in each state, so given that you are looking to expand your distributed workforce, you should know what your company can — and can’t — do in each state. You should also discuss whether to transfer the individuals you want to bring to the U.S. from your PEO (professional employer organization) to your company, particularly if you are only using the PEO for the individuals abroad. The specific immigration options you’re considering can be a factor in this as well.

When you consult your immigration attorney, you’ll want to discuss visa sponsorship for any individuals you want to bring to the U.S. who are currently on your global PEO’s payroll, as well as options for folks you haven’t started working with yet, whether they are already in the States or abroad. If your PEO has only a minimal employment relationship with those individuals and cannot hire and fire them, the PEO would probably not qualify as an employer for many types of visa sponsorship processes in the U.S., but there are ways to work with this.

You should also discuss whether to set up an immigration policy that spells out:

• When your company will sponsor an individual for a green card.
• Immigration strategies based on your company’s hiring goals and timing.
• Options for specific individuals based on their situation and qualifications.

Different startups choose to go different ways with whether to have these policies at all and if so, what they should include. I always recommend being strategic and deliberate about offering immigration as a benefit to recruit and retain international talent whether they are in the United States or abroad. Offering green card sponsorship after a year or two is a tremendous benefit! This also helps shape your company culture, demonstrating that you value diversity, inclusion and the well-being of your team.

Things to keep in mind with a distributed team

Whether your prospective hire is abroad or already in the United States, the best immigration options for hiring international engineering talent are the same with a distributed, hybrid or in-person team.

That said, having a distributed team will require your company to keep tabs on the worksite locations of your employees — in other words, their home address — and make sure the correct address is listed on all immigration-related forms and documents, such as the Labor Condition Application in an H-1B petition. If an employee moves, you may be required to file an amended visa petition with U.S. Citizenship and Immigration Services (USCIS). For the H-1B visa, you may need to repost or file a new Labor Condition Application with the U.S. Department of Labor Department.

Immigration and Customs Enforcement (ICE) or other government agencies may ask to inspect your company’s Form I-9 (Employment Eligibility Verification) to verify all your employees are legally allowed to work in the U.S. Since March 2020, the government has been inspecting I-9 documents virtually rather than doing in-person inspections at worksites — yay for this virtual availability! While the U.S. Department of Homeland Security (which oversees USCIS and ICE) is considering making this virtual inspection permanent, this policy may expire on Oct. 31, 2022. We’re keeping our fingers crossed that document inspection will remain virtual!

Visa options for engineers abroad

Work visas for consideration when bringing engineers to the United States to join your distributed team include the:

• O-1A extraordinary ability visa: Many of the startups we’ve worked with have received approvals for O-1As for founders as well as early-stage engineers! There are many ways to qualify, such as holding patents, receiving an international award or publishing articles in professional publications.
• TN (Treaty National) visa for Canadians and Mexicans: You can sponsor a Canadian or Mexican citizen with a bachelor’s or higher degree in certain professions — one of which is engineering!
• H-1B1 specialty occupation visa for Chileans and Singaporeans: This is an H-1B visa specifically for citizens of Chile and Singapore. Employers can apply for H-1B1 visas at any time of year because the supply for H-1B1s usually far exceeds the demand.
• E-3 specialty occupation visa for Australians: This visa is similar to an H-1B visa. Like the H-1B1, employers can sponsor an individual for an E-3 at any time of year.
• H-1B specialty occupation visa: You can register individuals for the next H-1B lottery starting in March 2023. You should be aware that the chances of being selected in the H-1B lottery have been decreasing each year since the number of lottery registrants has dramatically risen. Moreover, the earliest date that individuals selected in the lottery can begin working would be Oct. 1, 2023. There are also ways to get the H-1B without the lottery.

For your consideration planning, the wait time for getting a visa interview scheduled at many U.S. embassies and consulates is still several months. Even though consular officers are authorized to waive the in-person visa interview requirement for certain work visa beneficiaries, few interview waivers are being granted. Start now to try to bring talent to the U.S. before the end of the year!

Visa options for engineers in the U.S.

Your company can hire individuals already in the U.S. by sponsoring them for one of the work visas listed above. Later, your company can consider sponsoring your international engineers for one of the green cards listed below.

One additional — and a quick — option you have is to hire individuals who are already in the U.S. on an H-1B visa. For these individuals, you can transfer their H-1B to your company without needing to go through the lottery process! The H-1B is the only visa that allows somebody to start working upon the filing of a transfer application — even before USCIS has issued a receipt notice or made a decision in the case.

Ideally, the H-1B transfer candidate has either more than a year left on the H-1B so your company can start the green card process and renew the H-1B or a valid priority date. A priority date is when either:

• The Labor Department received a labor certification application known as PERM.
• Or USCIS received a green card petition.

Some context — PERM is the first step for employers to sponsor an employee for an EB-2 advanced degree or exceptional ability green card or an EB-3 skilled profession green card. The EB-1A extraordinary ability green card and the EB-2 NIW (National Interest Waiver) green card don’t require the lengthy PERM process.

Somebody can bring a priority date with them to a new green card petition in the EB-1, EB-2 or EB-3 categories. If they are in the final I-485 (Application to Register Permanent Status or Adjust Status) stage of the green card process, and this form has been pending at least 180 days, then it’s possible to transfer the employment-sponsored green card process to a new employer in a “same or similar occupation.” This allows the green card to continue without filing a new I-140 green card petition! Last week’s Dear Sophie covers some background for this topic!

Don’t forget about premium processing! This is an optional service — for a fee — that guarantees U.S. Citizenship and Immigration Services will either make a decision on the petition or issue a request for evidence within 15 days. Transferring an H-1B to your company with premium processing or applying for an O-1A, which is also eligible for premium processing, are the quickest visa options for hiring engineers already in the U.S.! USCIS is ramping up premium processing options for employment-based green card petitions as well.

You’ve got this!

— Sophie

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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. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.

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