Immigrants are integral to the success of a business, particularly in the tech sector. Beyond the reality that there are immensely talented individuals around the world who are looking to make an impact with their abilities, the truth is that there isn’t enough talent in America to fill the burgeoning industry’s needs.
Finding people who are brave and dedicated enough to leave their home thousands of miles behind them and start fresh in a new country is easy. Bringing them to America and hiring them can, on the surface, seem much more difficult—but that doesn’t necessarily mean that it is.
With the right information and the right help, you can successfully and safely hire the talent your company needs to truly thrive. Here’s how.
1. Only hire U.S. contractors and employees with employment authorization
There are a lot of talented people in the world, and a number of them want to work in Silicon Valley. Some are already here as a tourist or business visitor with B-1, B-2, or ESTA status. While they may be extremely talented and personable, you need to ensure you’re only hiring people who are authorized to work in the United States.
As you probably know already, hiring managers are required to check the work authorization of everyone they hire. Companies can face fines or even criminal prosecution for employing workers who do not have the appropriate authorization. And this doesn’t apply to full-time employees only—it’s also against the law to hire a W-9 contractor if you know they lack employment authorization.
So, it’s best to make sure you’re making safe choices. There are some people with work permits that you can hire as contractors without special sponsorship; the most common instance is of people with an EAD (Employment Authorization Document). You should always check with your corporate immigration counsel before extending an offer.
Some recent university grads may already have work permits. Students on F-1 status who graduated with a degree might qualify for a work permit by working in their field of study. This status, named OPT (Optional Practical Training), is initially valid for up to one year. And, if the student graduated in a STEM field, they can qualify for a further two years of work authorization (STEM OPT).
Bear in mind—if you find the right talent, you can find ways to guide them toward employment eligibility.
2. Start thinking about the April 2020 H-1B lottery now
H-1B visas allow founders and hiring managers to employ candidates in professional jobs requiring specialized skills that can be difficult to fill with American workers. Employees are not supposed to do admin work when they’re in H-1B status, and the job position needs to match the candidate’s field of expertise.
Since H-1Bs are currently over-subscribed, the government now holds an annual H-1B lottery. The law allows for 65,000 H-1Bs for candidates who have at least a bachelor’s degree or the equivalent and 20,000 more for graduates with advanced degrees from U.S. educational institutions. Due to changes in effect since April 2019, people with advanced degrees (Masters and PhDs) have a stronger likelihood of getting chosen than other candidates.
In April 2020, the lottery will undergo additional changes. USCIS is switching to a digital system, which should greatly simplify the H-1B process and make it less costly for startups because they’ll (hopefully) only need to prepare the full petition for people previously selected in the lottery.
Remember, the earliest start date for an H-1B hire is always the following October 1st.
3. You can get an O-1A visa for an expert any time of year—no lottery
O visas provide a way for startups to hire candidates who are at the top of their subfield (arts, sciences, education, business, athletics, entrepreneurship, etc.) globally or in their country of origin. You have latitude in choosing whatever subfield is appropriate for your business. The candidate will need to gather evidence to prove their accomplishments. Evidence can include:
- Winning prizes or receiving awards
- Membership in elite organizations
- Articles chronicling their achievements
- Original scientific, scholarly, or business-related contributions of major significance in their field
- Substantial earnings
- Working in a critical capacity for a distinguished organization or establishment
- Letters of recommendation
The O-1A, like other types of visas (such as E-2, H-1B, H-2B, and L-1), is eligible for premium processing. With this added service, USCIS guarantees to either make a decision on a petition or application within 15 calendar days for a $1,410 premium processing fee or otherwise refund your payment.
4. Get organized to streamline the process
Founders and hiring managers should create a long-term hiring plan, identifying roles that need filling—highlighting which ones will likely be filled by immigrants—and when. It can also be helpful for founders and hiring managers to clarify their immigration sponsorship policies and add language about when, and under what conditions, to sponsor a foreign employee for permanent residence (green card) or a temporary stay (nonimmigrant visa).
It’s always useful for employers to collect essential corporate documents before starting the immigration process for the first time or with new corporate immigration counsel. If this is your first immigration sponsorship, you’ll need to find and scan your SS-4 letter with the Federal Employer Identification Number assignment. It’s also helpful to have the following handy:
- Certificate of Incorporation
- Location where the candidate will work
- Offer letter with salary
- Job title and description for the opening as well as the percentage of time the person is going to spend on each job duty
- Screenshots of your website, brochures, or marketing documents
- Most recent Federal Tax Return
- Term sheet, cap table, etc.
- Recent bank statements
5. Start the green card process for Indian and Chinese employees right away
A recent Cato Institute analysis estimates that individuals from India and China may face multi-decade waits for their opportunity to get a green card. The most egregious situation is for an Indian worker with an advanced degree. These individuals may face a wait of 151 years or more to get a green card unless a lot of people decide to cancel their green cards or the law changes. However, this possibility doesn’t need to be a deterrent from hiring excellent talent.
An H-1B, when granted, is usually valid for up to three years with an option for a three-year extension, for a total of only six years in H-1B status. So, what can an employer do to help an employee born in India or China continue working in the U.S. while waiting for their green card?
For an employee to continue working beyond the typical six-year H-1B limit, the employer can start the green card process. When sponsoring a first-time H-1B applicant in the lottery, be sure to connect with an immigration lawyer to create a sponsorship roadmap for the candidate. This plan will preserve their ability to work in America beyond the six-year limit. Also, ask your H-1B employees if they have any previously approved I-140 Petitions from any prior employers and, if so, what their priority date is.
Below are the most common paths to a green card for startups seeking to hire immigrants:
- EB-1A green cards are for individuals with extraordinary ability in the sciences, arts, education, business, or athletics.
- EB-2 green cards are for professionals with a master’s degree or above in a field related to the position, including the PERM (Program Electronic Review Management) labor certification process.
- EB-2 NIW (National Interest Waiver) green cards avoid PERM for individuals working in the National Interest.
- EB-3 green cards are for skilled workers with training or work experience and a permanent full-time job offer, including the PERM labor certification process.
The immigration process doesn’t have to be overwhelming or a deterrent to securing the talent your business needs to succeed. Being educated and connected with legal help makes hiring immigrants easier. Taking advantage of resources such as this blog, other materials available to you, and your local immigration lawyer can simplify matters and keep you — and your business — on a safe and secure path to growth.
Check back soon for part two, which will feature hacks for some of the more unique immigration situations startups face.
Sophie Alcorn and Atrium frequently work together to advise clients with respect to immigration matters. To keep informed on similar topics or to read other articles authored by Sophie, follow her and Alcorn on LinkedIn and the Alcorn Blog.