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 startup registered two H-1B candidates in this year’s lottery. Sadly, neither was selected.

One is my co-founder, the other is on OPT. Help! We can’t afford for them to have to leave the U.S. What are our options?

— Lost in Los Angeles

Dear Lost:

Take a deep breath; I’ve got your back. There are many creative immigration pathways for you, your co-founder and your F-1 OPT employee to explore. We’ll take a look at several options, and you can also check out my recent podcast in which my colleague Nadia Zaidi and I explain them in greater depth.

I hope the below ideas inspire you and fill you with a sense of hope and possibility. As always, I suggest consulting with an experienced immigration attorney who can help you identify the strongest path forward, as well as backup options for your co-founder and employee. The particular immigration strategy that’s best for you is always an individual determination. It’s best identified through a personal consultation with an attorney such as myself based on a variety of factors, including each person’s immigration history and your particular startup’s goals.

Co-founder immigration options

For a funded startup, there’s a great H-1B Plan B: the Cap-Exempt H-1B. Especially if your co-founder has a STEM background (and possibly even for some founders who don’t have this), there’s a wonderful new triple-win option that supports startups, international candidates and even diverse U.S. STEM college students seeking better project-based learning opportunities.

What is this magical rainbow-striped unicorn option, you ask? Well, here’s the legal background: Some employers qualify to petition for an H-1B visa at any time without going through the lottery. These employers — called cap-exempt employers because they are not subject to the annual H-1B cap of 85,000 visas available to for-profit employers — include:

• Institutions of higher education.
• Nonprofits tied to institutions of higher education.
• Nonprofit research organizations.
• Government research organizations.

If your co-founder can get a part-time H-1B visa through one of these cap-exempt employers, your startup can concurrently sponsor your co-founder for an H-1B regardless of the recent lottery results.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

To take advantage of this special law, I’m a huge fan of Open Avenues Foundation, which offers a Global Talent Fellowship. In this program, international talent can receive cap-exempt H-1B visas by leading university students for about five hours a week in real-world, project-based work within their field of expertise for the startup that nominated them for the fellowship. The candidate gets to stay in (or come to) the U.S., your startup gets a team of students working on a group project that benefits your company and increases diversity in your hiring pipeline, and U.S. students get the benefit of hands-on high quality STEM learning.

Once your candidate’s first cap-exempt H-1B is in place, your startup can petition for a second, concurrent Cap-Exempt H-1B for direct startup employment.

Interested in variations? If you’re not in STEM but have a university that would host you (free to the university), you can potentially partner with OAF. In addition, many universities in the U.S have global entrepreneur-in-residence programs that can help international co-founders qualify for concurrent Cap-Exempt H-1Bs. Your startup should also consider sponsoring your co-founder for an O-1A visa or change of status.

Another option to consider is for your co-founder to apply for International Entrepreneur Parole (IEP), a new 30-month immigration status in the U.S. The International Entrepreneur Rule (IER) was created by President Barack Obama and is the closest thing the U.S. has right now to a startup visa. The Trump administration tried to eliminate it, but the National Venture Capital Association, led by Jeff Farrah, successfully challenged the administration’s effort in federal court, so IEP remains on the books.

A lot of folks don’t believe it’s an option yet, so I’m currently looking for international startup founders with a strong case to file for IEP to test out this new program and demonstrate its existence to the world. We’re currently seeking global startup founders holding at least 15% equity in a U.S. startup that’s less than five years old and has raised at least $250,000 from U.S. investors. If you want to be on our free interest list, you can fill out this form. If we think you have a strong application, we’ll reach out.

If your co-founder wants to remain permanently in the U.S., consider starting a green card now such as the EB-1A green card for individuals of extraordinary ability or an EB-2 NIW (National Interest Waiver) green card for individuals of exceptional ability. Of these, the EB-1A is the quickest option, but its qualification requirements are tougher than for the EB-2 NIW.

F-1 OPT employee immigration options

If your F-1 OPT employee graduated with a qualified STEM degree, that employee can apply for a 24-month work extension, known as STEM OPT. That will allow the employee to remain in the U.S. to continue working for you. In the meantime, you can register them again next year for the H-1B lottery. If there’s no possibility for STEM, please check out the Cap-Exempt H-1B option explained above.

If your F-1 OPT employee only has a bachelor’s degree, they might want to consider pursuing an advanced degree. Individuals with a master’s or higher degree from a U.S. university have better odds of being selected in the annual H-1B lottery. That’s because 20,000 of the 85,000 H-1B visas available each year are earmarked for individuals with a master’s or higher degree from a U.S. university.

You should be aware, however, that next year’s H-1B lottery will likely shift from the current random selection process to one based on the highest wages. Unless the Biden administration changes the policy, which was devised by the previous administration, employers who pay their H-1B candidates a Level III wage or higher have the best chance of getting selected to file for an H-1B visa.

As you know, sponsoring employers must agree to pay an H-1B candidate the higher of either the actual wage paid for the job or the prevailing wage, which is broken down into four levels based on experience required for the position and location of the position. Level I wage is basically for an entry-level position, while a Level IV wage is for a position requiring the most experience. While this will add greater predictability to the annual H-1B “lottery,” early-stage startups and small businesses may have a difficult time competing against more established companies on salary, particularly because stock options and equity are not included in the salary calculation.

If you need to find alternative visa solutions, you can always consult with an attorney. I hope all of these options help you realize the control and agency you have in this situation. You have choices!

All my best,

Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit 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 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!

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