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Can you demystify the H-1B process and premium E-3 processing?  – TechCrunch


Here’s another edition of “Dear Sophie,” the advice column that answers questions about immigration on working in tech companies.

“Your questions are essential to disseminating the knowledge that enables people around the world to rise above borders and pursue their dreams,” said Sophie Alcorn, immigration lawyer in Silicon Valley. “Whether you’re in people operations, a founder or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”

Extra Crunch members have access to the weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one or two year subscription with 50% off.


Dear Sophie:

Our startup plans to enroll a foreign student in this year’s H-1B lottery. This will be our first H-1B.

Can you help demystify the H-1B process and provide advice? We also want to hire an Australian and transfer his E-3. How quickly can this be done?

– Plucky in Pleasanton

Dear Plucky:

Thanks for your timely questions! There is good news for Australian citizens currently in the United States and looking for job transfers, amendments and extensions. Premium processing is now available for the E-3 work visa category! This means transfers, status changes and status extensions for Australians in the United States seeking an E-3 can now get USCIS rulings in as little as 15 days, making it easier many hiring an Australian who is currently in the United States. for a new role. Dark!

For H-1Bs, this year’s H-1B Lottery entry period will open at 9:00 a.m. PST on March 9 and end at 9:00 a.m. on March 25. Startups should make sure to register everyone they want. sponsor during this window. Listen to my recent H-1B Lottery Planning Part 1 & Part 2 podcast for a general explanation of how this year’s process works and how best to prepare.

Planning is essential to implement a successful immigration strategy. As always, I suggest you consult with an experienced immigration attorney as soon as possible to help you organize yourself to register your H-1B candidate for the March Lottery and do as much prep work as possible so that you can prepare a strong H-1B petition in the event where your candidate is selected in the lottery.

An attorney will also be up to date on any recent changes in immigration policy, such as USCIS ‘cancellation of a Trump-era policy that came into effect in 2017 that effectively made computer programming positions ineligible for an H-1B visa. You will also want to discuss the save options for the international student employee if they are not selected in this year’s lottery.

Image credits: Joanna Buniak / Sophie Alcorn (Opens in a new window)

Registration and lottery process

Recently, the United States Citizenship and Immigration Services (USCIS) announced that it would delay plans to switch from an H-1B random lottery to a salary-based lottery that would have selected until next year. registrants who would receive the highest salary for their position and location. In January, the previous administration finalized the rule for implementing the pay lottery. The latest announcement ended weeks of speculation over whether USCIS under the Biden administration would retain a salary-based H-1B allocation process, which matches the presidential campaign platform. from President Biden.

The H-1B Random Lottery in March means that H-1B applicants with the same level of education who are paid more will not have more benefit than those who are paid less. However, next year that may not be the case.

Whether there is a random or salary-based lottery, people with a master’s degree or higher from a US university will continue to have the best chance of being selected for the H-1B lottery. The annual cap for H-1Bs remains at 85,000 and of these, 20,000 H-1Bs are reserved for people with a master’s degree or more from a US university. USCIS randomly selects enough enrolled applicants from the entire enrollment pool to first reach the regular 65,000 H-1B cap. Then, it randomly selects 20,000 other registered applicants with a US master’s degree or above, under what is known as the graduate degree cap exemption. Therefore, people with an American graduate degree have two chances of being selected. To be eligible, your international student employee must have graduated from an eligible and accredited U.S. institution at the time of filing the H-1B petition.

After the online registration period closes on March 25, USCIS will conduct a random computerized selection of registrations and notify those selected by March 31. A completed H-1B petition must be filed within 90 days of notification of the selected H-1B candidate for the lottery, which means the filing deadline will be June 30.

In order to register your candidate for the H-1B Lottery, your business will need to create a USCIS account online if it does not already have one. This can be done at any time between now and the end of the registration period. Your lawyer can help you with this and the online registration process.

For the online registration process, your business will need to provide the following information:

  • Full legal name of the candidate.
  • Genre.
  • Date of Birth.
  • Native country.
  • Country of Citizenship.
  • Passport number.
  • Whether the candidate is eligible for inclusion in the US graduate degree cap.

Additionally, your business will need to pay the $ 10 registration fee, which can be submitted by entering a credit card, debit card, checking account, or savings account directly into the H- registration portal. 1B.

Preparation tips

As a general rule, your startup and your H-1B candidate should start putting together the documents you will need to submit. Your startup will need to have their tax identification number verified by the US Department of Labor to prove that your startup is capable of sponsoring an individual for an H-1B. This must be done before your company can submit a Working Conditions Request (LCA), which is also sent to the Department of Labor. An approved ACL must be submitted along with your H-1B petition to USCIS. In addition to your startup’s tax ID, it will need the following:

  • If your startup was recently formed, statutes, a pitch deck, a business plan, a term sheet, capitalization tables.
  • Documents showing that your company can pay the current salary for the position and location of the H-1B candidate: bank statements, tax returns, other financial documents.
  • Documents proving that your business is operating in the normal course of business, including marketing materials, company reports, company website screenshots.
  • Letter of offer of employment to candidate H-1B including job title, detailed duties, benefits, salary and start date.
  • Minimum requirements for the position.

Your H-1B candidate will need:

  • An up-to-date CV.
  • Originals of diplomas, certificates and transcripts (also scanned copies).
  • Previous immigration documents, such as Form I-20 (Certificate of Eligibility for F-1 Student Status) or Form DS-2019 (Certificate of Eligibility for J-1 Status.
  • Translations of all documents not in English with a certified translation document.

For tips on how to file the H-1B petition, listen to my podcast episodes on “Your H-1B Startup” and “What Makes a Strong H-1B Petition”. Your attorney will be able to demonstrate that your H-1B candidate and the position offered by your startup meet the requirements for the H-1B Specialty Occupation Visa.

As of now, premium processing for H-1B petitions remains available. Currently, USCIS is seriously behind in all types of cases, so I often suggest using it, depending on the H-1B candidate’s start date and current geographic location. With premium treatment, which is an optional service for a fee of $ 2,500, USCIS guarantees that it will make a decision on a case within 15 days. If USCIS approves your H-1B petition, the first international student employee can begin working under the H-1B visa is October 1, 2022, which is the first day of the federal government’s new fiscal year.

Fingers crossed for you in this year’s H-1B lottery

All my wishes,

Sophie


Have a question for Sophie? Request it here. We reserve the right to modify 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 “Dear Sophie” limits, please see 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 want to be invited, she accepts applications!


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