Dear Sophie: Which immigration options are the fastest?

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:

Help! Our startup needs to hire 50 engineers in artificial intelligence and related fields ASAP. Which visa and green card options are the quickest to get for top immigrant engineers?

 And will Biden’s new immigration bill help us?

— Mesmerized in Menlo Park

Dear Mesmerized,

I’m getting this question quite frequently now as more and more startups with recent funding rounds are looking to quickly expand. In the latest episode of my podcast, I discuss some of the quickest visa categories for startups to consider when they need to add talent quickly.

As always, I suggest consulting with an experienced immigration lawyer who can help you quickly strategize and implement an efficient and cost-effective hiring and immigration plan. An immigration lawyer will also be up to date on any immigration policy changes and plans in the event that the Biden administration’s U.S. Citizenship Act of 2021 passes. It was introduced in the House and Senate this month.

That proposed legislation would enable more international talent to come to the U.S. for jobs and clear employment-based visa backlogs, among other things. Given the legislation’s substantial benefits offered to employers, I encourage your startup — and other companies — to let congressional representatives know you support it.

Given that most U.S. embassies and consulates remain at limited capacity for routine visa and green card processing due to the pandemic, it is generally quicker to hire American and international workers who are already in the U.S. Although U.S. Citizenship and Immigration Services (USCIS) is experiencing substantial delays in processing cases due to the coronavirus, as well as an increase in applications, Premium Processing is currently available for most employment-based petitions. We are still able to support many folks with U.S. visa appointment scheduling at consulates abroad using various national interest strategies.

With all of that in mind, here are the visa categories that offer the quickest way to hire international talent.

H-1B transfers

Hiring individuals by transferring their H-1B to your startup can be completed in a couple of months with premium processing. Premium processing is an optional service that for a fee guarantees USCIS will process the petition within 15 calendar days.

What’s more, H-1B transferees can start working for your startup even before USCIS has issued a receipt notice or made a decision in the case. You just need to make sure that USCIS received the petition, which is why I always recommend sending all packages to USCIS with tracking.

Premium processing can help to get a digital receipt as the paper receipts are often backlogged. I stopped suggesting this route during the Trump administration, but am feeling more comfortable providing it as an option under the Biden administration. The H-1B is the only type of visa that allows somebody to start working upon the filing of a transfer application.

The H-1B transferee will need to secure a green card — either obtaining an employer-sponsored one or self-petitioning for one — in order for your company to extend the H-1B beyond six years while waiting for a decision on a green card case or for a green card number to be available. Ideally, H-1B transfer candidates have either more than a year left on their H-1B or a valid priority date.

A priority date is the date on which either the Labor Department received a labor certification application (PERM), which is the first step for employer sponsors in the EB-2 or EB-3 green card process, or USCIS received a green card petition. If the individual’s former employer filed the green card petition, then the individual can remain in the U.S. and keep that priority date if your company sponsors the individual for a green card.

Due to per-country green card caps, individuals born in India and China face waiting years if not decades for a green card number to become available. If the U.S. Citizenship Act of 2021 becomes a reality, those per-country caps would be eliminated, thereby reducing green card wait times.

O-1A visa

Sponsoring individuals already in the U.S. for an O-1A extraordinary ability nonimmigrant (temporary) visa is also a quick process, usually taking four to six weeks. Don’t let the description of the O-1A overwhelm you or the potential hire. Many of the startups we’ve worked with have received approvals for O-1As even though the individual did not have a Nobel Prize. There are other ways to qualify, such as by holding patents, receiving an international prize or award, publishing articles in professional or major publications, and more.

H-1B lottery

Start now for any candidates not currently holding an H-1B. The registration process for this year’s H-1B lottery begins on March 9 and will run through March 25. Individuals who are selected in the lottery can start working on October 1 at the earliest if USCIS approves the H-1B petition. While transferring an H-1B to your company or sponsoring an individual for an O-1A is much quicker, registering each employee or prospective employee for the lottery only costs $10, and provides a good option, particularly for recent graduates who may not have the experience, qualifications or achievements required for an O-1A.

As with last year, this year’s lottery will be random and not based on wages (although that might happen in the future).

Other relatively quick and easy visas

Visas for citizens of certain countries who are currently in the United States are relatively quick and easy to obtain or transfer:

• TN (Treaty National) visa for Canadians and Mexicans enables an employer to sponsor a Canadian or Mexican citizen in certain professions with a bachelor’s or higher degree. Premium processing is available.
• The H-1B1 visa is a fast-track H-1B visa for individuals who are citizens of Chile and Singapore. Premium processing is available.
• The E-3 visa for Australians is very similar to an H-1B visa, but employers can sponsor an individual for an E-3 at any time of year. Premium processing is not available for an E-3 visa. However, these visas are relatively quick even if the individual is in Australia as visa interview appointments can be secured rapidly there now.
• The five-year J-1 visa for researchers is relatively easy to transfer to another employer even though premium processing is not an option.

Green cards

Because green cards enable their holders to live permanently in the U.S., the requirements for green cards are more stringent than those for nonimmigrant visas. Moreover, USCIS typically takes longer to process green card petitions than those for nonimmigrant visas.

A marriage-based green card is the quickest, least expensive, and least document-intensive green card option. Much of that is due to the fact that marriage-based green cards are not subject to annual numerical or per-country caps like employment-based green cards. However, the wait time for scheduling the mandatory interview remains long.

The quickest employment-based green card is the EB-1A green card for individuals with extraordinary ability. Under the Biden administration, USCIS has reverted back to the pre-Trump era policy of eliminating mandatory interviews for employment-based green card candidates, which should help with the interview scheduling backlog.

All the best in quickly reaching your hiring goal!

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. 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!