Dear Sophie: How to maneuver the latest travel bans, H-1B alternatives

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,

The 2021 H-1B lottery process has been quite a rollercoaster!

We sponsored several people in this year’s lottery. One of our registrants was selected in the first round in March, but none were selected in the second round in July.

We just found out another of our registrants was selected in November, however, he’s from South Africa and restricted from traveling to the U.S. due to omicron.

What should we do? Any suggestions for what to do about our other prospective hires who didn’t get selected?

— Eager Employer

Dear Eager,

Congrats on getting two of your registrants selected in the most recent year’s H-1B lottery! Our clients had many candidates who got selected in subsequent selection rounds as well. This year’s H-1B lottery was a drawn-out process, and it’s great to see that U.S. Citizenship and Immigration Services (USCIS) is committed to reaching the 85,000 H-1B cap. I touched on this in a recent podcast in which I talked about immigration changes and trends I expect to see in the year ahead.

I’m anticipating that granting as many of the 85,000 H-1B visas as possible each year will continue to be a priority for the Biden administration. To reduce immigration backlogs, they are working to rebuild resources and staffing levels at USCIS and the U.S. Department of State that had been gutted during the previous four years.

The new travel ban

As you know, the Biden administration instituted a travel policy on Nov. 29 due to the omicron variant. The most recent policy bars individuals who have been in South Africa, as well as Botswana, Eswatini, Lesotho, Namibia, Malawi, Mozambique and Zimbabwe within the previous 14 days from entering the United States. U.S. citizens, permanent residents and the spouses of U.S. citizens and permanent residents are exempted from this new travel ban.

If this policy remains in place and the H-1B petition for your prospective employee from South Africa is approved, then he would simply have to ride out the 14-day quarantine period in a country that is not on the travel restriction list before entering the United States, or potentially obtain some sort of waiver, if it is available at the time.

When the previous travel bans affecting South Africa, the U.K., Ireland and other countries were in place, we had several clients who took a vacation in a (tropical) third country not affected by a travel ban and without entry restrictions for two weeks before flying to the United States. To enter the United States, based on current requirements, your new hire will need to show he is fully vaccinated and had a negative COVID-19 test result taken no more than three days before entering.

As always, I recommend that you consult an experienced immigration attorney to support you in navigating this H-1B case, as well as on any other cases involving international hires. Remember, you should have until the middle of February to file the full H-1B petition on behalf of the individual who was selected in the random selection process in November.

H-1B alternatives

One of the top alternatives to obtaining an H-1B visa through the lottery is getting a concurrent cap-exempt H-1B by partnering with a cap-exempt employer. Although the financial investment of this process is more than a cap-subject H-1B, it is much quicker to obtain.

My firm has often collaborated with Open Avenues Foundation to support private companies with obtaining concurrent, cap-exempt, H-1Bs for their employees without the need to go through the H-1B lottery. It’s a timely, predictable solution whether the beneficiary is outside or inside the United States. Read more about concurrent, cap-exempt H-1Bs in this previous Dear Sophie column.

Other alternatives include the O-1A visa for individuals with extraordinary abilities. Unlike the H-1B, the O-1A does not have an annual cap, and employers are not required to file a Labor Condition Application with the U.S. Department of Labor.

There are other visas that are earmarked for professionals from specific countries, such as the TN visa for professionals from Canada or Mexico, the E-3 visa for individuals from Australia, and the H-1B1 visa for individuals from Chile or Singapore. A few additional backup options are included here. An immigration attorney can help you identify immigration options based on your company and the background of the prospective employees.

All the best in bringing your new hires to the U.S. and growing your company!

— 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.

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