Sophie Alcorn
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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,
My STEM OPT expires in February 2023. My company has a policy that they won’t register me for the H-1B lottery since I have more than one year of OPT left.
What options do I have now?
—Distressed in Dublin
Dear Distressed,
I’m so sorry to hear that your employer won’t register you in the upcoming H-1B lottery in March, which is the last chance your employer has to enter you in the lottery. We’re often seeing that most tech companies will take every chance to register all OPT employees every year until they get selected.
Given that your F-1 STEM OPT expires in February 2023, you should start looking at other visa or green card options now with an experienced immigration attorney who can make suggestions based on your unique situation, experience and goals. It is likely too late to find an employer willing to register you for this year’s H-1B lottery. However, you could look for a company that would be willing to pursue a cap-exempt H-1B, which does not involve a lottery and can be applied for at any time during the year.
Work visas like the H-1B require a company to sponsor you, so you should look for other positions at companies that have a culture of diversity and inclusion and are willing to sponsor you. The current high demand for STEM talent means you should have several job options available to you.
Moreover, U.S. Citizenship and Immigration Services (USCIS) recently made several policy changes designed to retain international STEM students in the United States, such as recognizing some doctoral dissertation awards and Ph.D. scholarships as meeting the criteria for a national or internationally recognized award for excellence for the O-1A extraordinary ability visa.
Stay the course — where there’s a will, there’s a way!
—Sophie
Dear Sophie,
There’s been a lot of talk over the years about a startup visa.
Do you think this is the year that one will actually be created?
—Exceptional Entrepreneur
Dear Exceptional,
My crystal ball says that there is actually hope for a startup visa in 2022! I recently sat down for a podcast chat with Bobby Franklin, the president and CEO of the National Venture Capital Association (NVCA), to discuss the prospects for a startup visa.
Franklin said creating a startup visa has and continues to be the top priority for the NVCA. And while congressional support for a startup visa remains strong, the House startup visa legislation was added to a larger bill that’s still seeking bipartisan support, so this process might realistically take a few more months.
Recently, the House included California Rep. Zoe Lofgren’s LIKE Act, which includes the startup visa and green card, in the America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength (COMPETES) Act. Introduced in January, the COMPETES Act seeks to strengthen American scientific and technological innovation and R&D to better compete with China. In addition to creating a startup visa, the COMPETES Act also exempts individuals and their families from the numerical and per-country limits on green cards if those individuals have a doctoral degree in a STEM field.
The good news is that the House passed the COMPETES Act in February, and President Joe Biden has already stated his support for the bill. However, the House passed the COMPETES Act largely along party lines. Now, House and Senate leaders are actively hammering out a pared-down compromise bill. The resulting bill must then be approved by both the House and Senate before heading to Biden’s desk.
If you are a founder or have a startup in one of the following states, you can make a huge difference in the future of the United States by contacting your senators. Here is a list of Republican senators who voted to pass the United States Innovation and Competition Act, which is now being reconciled with the House’s version, America COMPETES:
- Alaska: Lisa Murkowski, Dan Sullivan
- Idaho: Mike Crapo, Jim Risch
- Indiana: Todd Young
- Kentucky: Mitch McConnell
- Maine: Susan Collins
- Mississippi: Roger Wicker
- Missouri: Roy Blunt
- Montana: Steve Daines
- Nebraska: Ben Sasse
- North Carolina: Thom Tillis
- Ohio: Rob Portman
- South Carolina: Lindsey Graham
- South Dakota: Mike Rounds
- Texas: John Cornyn
- Utah: Mitt Romney
- West Virginia: Shelley Moore Capito
If you’re looking for options that may be available to you right now, consult an immigration attorney to explore your options, such as an O-1A visa for extraordinary ability or International Entrepreneur Parole (IEP).
Stay tuned for further updates on the startup visa.
—Sophie
Dear Sophie,
I am currently on my F1 STEM OPT, which ends in June 2023. My employer is registering me for the H-1B lottery this March.
If my application gets picked in the lottery, can I still travel in May or June to India?
—Happy but Homesick
Dear Happy,
I understand your desire to visit your homeland. Although I’m still pretty much advising people to be cautious of international travel because there’s a risk of testing positive for COVID and not being able to return to the United States, at least you have a current, valid, multiple entry visa (in this case, an F-1), as well as presumably a valid Form I-20 and EAD (work permit), so it sounds as if you should probably be allowed to return to the U.S. in valid status, and you would not need to obtain a visa on your trip, which could be challenging.
For the H-1B lottery process, your employer or your employer’s immigration counsel will need a whole host of documents and evidence from you and will likely have questions, so you need to be available while your H-1B case is put together, even if you’re outside the U.S. at that time. If you are selected in the lottery in March, your employer will have until June 30 to get Labor Condition Application approval from the U.S. Department of Labor and file the H-1B application on your behalf to USCIS.
Talk to your legal team about the process of changing your status from F-1 to H-1B while you’re in the United States if your H-1B is selected; depending on the timing of your travel and your green card plans, they can recommend whether you should pursue a change of status or consular processing.
Happy – and safe – travels!
—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.
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!
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