Dear Sophie: How did immigration change for startup founders in 2020?

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:

I’m on an F1 OPT and am about to incorporate a startup with my two American co-founders. What were the biggest immigration changes in 2020 affecting us?

—Ambitious in Albany

Dear Ambitious:

Congrats on creating your startup. The Electoral College has voted and Biden is scheduled to take office on January 20, 2021. It may take him a few months to undo many of the Trump immigration changes, so there are several things for you to consider.

2020 gave many of us whiplash with all the things that happened! We braced for the worst in April after President Trump tweeted that he would suspend immigration to the U.S. In the end, the executive proclamations he issued in April and June fell far short of that and immigration remains possible.

However, these bans remain in effect until at least the end of 2020. The proclamations placed moratoriums on the issuance of green cards by the U.S. Embassies and consulates abroad, as well as H-1B, H-2B, J-1 and L-1 work visas. The Department of State has expanded the list of exceptions to these bans so many people now qualify.

One of the current constraints affecting the most people is that many embassies and consulates remain closed or are operating at significantly reduced capacity. Given that, we are recommending to our clients who are already in the U.S. to avoid leaving by seeking Extensions of Status, Changes of Status and Adjustments of Status with USCIS stateside.

The H-1B may be another promising visa option for your future as a founder. There are two ways to do it: “cap-subject” (the annual spring lottery) and “cap-exempt” (anytime of year). At a minimum, it’s easy for your startup to register you for the upcoming H-1B lottery in March 2021. It only costs $10 to register an H-1B candidate. If you’re selected, your startup could file an H-1B petition on your behalf. If you are not selected, your startup can register you again in 2022.

Many recent graduates already have the credentials and accomplishments that make them eligible for the O-1A visa, EB-1A green card or the EB-2 NIW green card, which are great options for entrepreneurs. I’ve created Extraordinary Ability Bootcamp to support anybody to become qualified for an O-1A visa, EB-1A green card or EB-2 NIW green card.

I’ll be writing more articles on H-1Bs in the weeks to come. One reason is because the U.S. Department of Homeland Security (DHS), which oversees U.S. Citizenship and Immigration Services (USCIS), and the U.S. Department of Labor (DOL) have both proposed and adopted new rules that affect the H-1B process. Earlier this month, DHS proposed a rule to end the random H-1B lottery and instead determine who can apply for an H-1B visa based on the highest salary. If this proposed rule goes into effect, that would mean your startup could reduce some of the risk of randomness in the lottery process by offering you a Level 4 or Level 3 wage. It would be wonderful for people to be able to make clear plans if the H-1B allocation were more of an allocation than random.

Some other H-1B changes have been put on hold. In October, DOL and DHS both proposed new rules that impacted the H-1B process. DOL issued a proposed rule that went into effect almost immediately, significantly raised the wages employers must pay to employees they sponsor for an H-1B visa, as well as H-1B1, E-3 and H-2B work visas, and the following green cards: EB-2 advanced degree, EB-2 exceptional ability and EB-3 skilled worker. Both of these rules have been stopped recently through litigation.

If you are not selected in the H-1B lottery before your STEM OPT expires, other startup-friendly visa options exist. I talk about them in more detail in a recent podcast. Some founders may be eligible for a “cap-exempt” H-1B to get a working visa anytime of year, with no lottery or randomness. This is a unique opportunity; contact me if interested.

In order to move forward on any type of immigration sponsorship through your startup, you’ll need a legal entity. Check out my interview with Lindsey Mignano, founding partner of Smith Shapourian Mignano, a corporate law firm based in San Francisco that focuses on startups. She offers up best practices for startups and startup founders regarding the incorporation and fundraising process.

After you incorporate, get your bank account and raise your pre-seed or seed rounds, you’ll be looking to hire people! For this you should be aware of some additional immigration changes:

If you are hiring a candidate from outside the U.S., for an H-1B or J-1 visa, your startup should consider joining one of the plaintiff organizations, such as the U.S. Chamber of Commerce or TechNet, that filed a lawsuit challenging Trump’s executive proclamation in June. A federal judge in October ordered USCIS and the State Department to resume processing and issuing H-1B, H-2B, J-1 and L-1 visas to the five plaintiff organizations that filed the lawsuit.

Dreamers can continue to get work permits, and now USCIS is accepting new applications for Deferred Action for Childhood Arrivals (DACA) status. A U.S. Supreme Court decision in June enabled the DACA program to continue, but the Trump administration significantly curtailed the program in July. In November, however, a federal judge in New York ruled that the Trump administration had inappropriately limited DACA applications and renewals.

Green cards are going to be easier in 2021 as well. The public charge rule, which expanded the factors immigration officials will consider in determining whether visa or green card applicants are likely to become dependent on government benefits has gone into effect and then suspended a few times this year. Immigration officials can use this assessment as the basis for denying a visa or green card application. This month a federal judge prohibited immigration officials from using a wealth test for this purpose, effectively blocking the public charge rule. Biden has proposed to end the Public Charge Rule.

Good luck with your new endeavor! Keep me posted on how things go.

Take care!

Sophie

Have a question? 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 here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!