We had a great time hosting noted immigration attorney Sophie Alcorn on a live conference call with Extra Crunch members earlier this week.
Sophie writes our “Dear Sophie” column, where she answers questions about immigration status, particularly for founders and others in the tech ecosystem who want to work in the United States.
In our conference call, we talked about the changes happening to H-1B visas, what COVID-19 is doing to the immigration system and some of the top concerns of founders in these perilous times. Below the jump, you’ll find an edited transcript, or you can listen to the call in its entirety.
As with all legal advice, always speak with your own retained attorney about specific details regarding your own cases as illustrative examples may or may not apply to your own unique situation.
What’s changing with regards to H-1B visas?
Danny: The H-1B lottery is coming up I guess in a couple of weeks. I don’t think they’ve delayed specifically the lottery itself. Obviously there’s always a huge amount of competition, I believe the number is capped around what, 65,000 or so, but there have been some serious changes. I guess premium processing has changed recently. Can you talk a little bit about what that all means?
There’re several changes. Some of them are related to COVID-19 but actually just the H-1B system, in general, has been in flux this whole year so far and it seems like they’re trying really hard to keep everything going.
USCIS is the agency that deals with this and they have currently closed all of their public-facing offices. If you had a green card interview or citizenship interview scheduled, those are all being canceled, but they also operate out of these service centers in a couple of different states where a lot of workers are deciding petitions and applications, and it seems to be that those are still open and that they’re going ahead with the lottery.
The way they changed it was, historically, it was all paper-based and April 1st was the start date and physical paper-based petitions could be received within the first five business days of April and about 200,000 people applied for 65,000 slots for people from anywhere in the world, plus about 20,000 for people with advanced degrees. It took the government like three months just to return 100-page petitions from 120,000 people who didn’t get selected.
They cut all of that out this year and they seem to have pulled off this electronic registration process. The window was open from March 1st to March 20th so all the companies had to make profiles and put in all the names of their candidates and now, in about a week, we’re anticipating that the government should announce all of the people who were selected.
Everybody else is going to be probably put on just a wait list so that there won’t be outright rejections. You’ll just be in line if there’s another slot that becomes available from somebody else who didn’t follow through or got denied.
They did announce that premium processing is going to be suspended and that’s been a typical tactic every year where petitions in the lottery don’t get access to premium processing.
They’re targeting an October 1st start date at the earliest for all of these new hires. The government kind of says, “We’re not going to do it in two weeks. Just let us get through this big push. Later, we might make it available so you can turn it on for anybody who you’re still waiting for.” That happened and that was kind of predictable, but then the other component is that they also canceled premium processing in general for everybody. It’s still applicable to cases that were filed last week, but for any new cases that are being filed this week, whether it’s an I-129 non-immigrant visa petition or like an O-visa for extraordinary ability or an H-1B, no more premium processing for those and no more premium processing for I-140s, which is a green card petition.
Things are slowing down and they’re pretty opaque. I don’t know if the workers at these service centers are able to work from home or how they’re managing it, but they still have a high volume of petitions and applications that they need to process and they have reduced capacity to do it. That much is clear.
How do you handle in-person visa processing today?
Danny: Sophie, let me ask you, for some of the requirements, the visa process requires you to leave the country and pick up the visa or go through some sort of processing in a home country in order to move forward. What are the changes on that front, now that travel has been restricted internationally?
Yeah, we can’t leave. And, it’s not just the U.S., right? Every country around the world is listing its own different requirements for who they’re going to let in or not and you can probably go back to the country you’re a citizen of, but maybe not. They might prevent you.
This is really important for the round of H-1Bs that are going to be filed. For anybody who’s currently in the United States on another status like F-1, OPT or STEM-OPT or any other type of visa, you should really, at this point with the way the global outlook is appearing, don’t choose consular processing because I don’t know if you can leave, and if you can leave, I don’t know if you can get back. All of the embassies and consulates are closed right now unless there is an actual emergency need for a visa, which they’re being very, very strict about.
To make that easier, because sometimes people may have gone out of status by a week or something and they were planning on going back home to just cure it, get a new visa and come back in but you can’t really do that anymore so you’re technically out of status and you could be accruing what’s called unlawful presence, which is very bad because if you have more than six months accrued and you leave, you can’t come back in for three years. If you’ve accrued more than a year and you leave, you can’t come back for 10 years.
It’s very harsh, but there is a temporary forgiveness measure that USCIS has created. It’s called special situations. Because this is basically like a flood, a fire or some other natural disaster, if you have somehow missed a deadline because of COVID-19, you’d get a lawyer to help you explain it but you may be able to request an extension or something within the United States without leaving when you otherwise would’ve needed to get consular processing.
Danny: When you think about some of the questions you’re getting from your own clients, what’s on people’s minds today? What are the big concerns?
Yeah, well, it seems like a lot of people want to get married! But the problem is that city halls and county registrars are closed. If you don’t already have a marriage license, you might not be able to get one. If you do have a marriage license, you could always get somebody registered through Universal Life Church to conduct the marriage for you. Just the practical logistics of getting married in a government shutdown is really interesting.
Many companies are still very gung-ho about visas for founders and hyper-critical people who they have a job opening and it’s like just for this one person and they really need this person in their organization. There was a lot of demand for the H-1B lottery but people were also freaking out last week with all the shutdowns and are you an essential business since you have to work from home and how do you manage it?
We were really herding cats to try to get all of the electronic registrations done last week and I think there’s also just, kind of, a pause. Everybody’s just taking a moment to reflect and figure out, okay, what does this mean for my business? What, what new opportunities do I see? Do I need to pivot something? And, we also just don’t know how long we’re really going to be home, right, but it seems like as good a time as any to, to dive in basically.
How will layoffs affect immigration status?
Natasha: Are you hearing anything about how your clients are feeling about impending layoffs? I feel like we’ve been seeing a number of those recently and just any advice you have for people worried about layoffs and employers that are thinking about layoffs as well.
Yeah. Layoffs can interfere with your future ability to sponsor a green card or get immigration benefits for somebody. If you know that you want to hire people or start green cards for people in a few months, maybe look for some alternative options besides layoffs. I think there’s like a new tax incentive, family medical leave opportunity that might be available now, and we’ll see what’s in the stimulus package and other legislation that’s coming out, but if there’s any way to not actually lay them off, that could be beneficial.
For people who do get laid off, there’s a 60-day grace period after the cessation of employment during which you are allowed to remain in the United States and you can always use that time to look for another job to hire you and they need to just file the H-1B petition by the 60th day so that USCIS receives it.
But without premium processing, there’s no way that you’ll get a decision within that 60-day window, but it is okay if you’re already an H-1B, it is okay to start working at the new company once USCIS receives the petition and if you need more time, you could also apply for a change of status to maybe a visitor status and that’s a way to get another six months. During that time you could continue your job search, but you wouldn’t be able to start working until that H-1B is approved. If you’d go to like a B visitor, then you would no longer be in H-1B status. You’d have to wait for a new H-1B approval to start again.
Danny: Well, hopefully we’ll be able to see you live again soon. In the meantime, Sophie Alcorn of Alcorn Law. That’s www.alcorn.law as well as the “Dear Sophie” column on Extra Crunch. Thank you so much for joining us. Super appreciate it.
Thank you, Danny! Thank you, Natasha! I really appreciate it. Take care you guys.
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