Dear Sophie: Last-minute H-1Bs, O-1A & EB-1A extraordinary credential prep

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,

How many people are employers going to register in the H-1B lottery this year? Will there be fewer because of all of the layoffs?

Is it still possible to include additional candidates before the deadline next week?

— Fast-paced Founder

Dear Fast-paced,

We’re in the heart of H-1B season! The registration window for this year’s annual H-1B lottery is currently open with USCIS.

If you are thinking of including any (additional) candidates and your immigration counsel has already reached capacity, your company may submit any last-minute registrations on its own by following USCIS’s step-by-step instructions.

Employers must be mindful that no new H-1B registrations can be submitted after the registration portal closes at 12 p.m. ET on March 17, which is the Friday of next week.

How many people will be registered? Nobody knows. The mass layoffs in tech mean that there are many people seeking jobs. On the other hand, there are still many, many job openings in tech that employers are willing to sponsor immigrant candidates for. Plus, hundreds of thousands of F-1 university graduates work on regular OPT and STEM OPT every year with the hope that their employers will sponsor them in the lottery.

The 2023 Immigration Trends Report actually predicts that employers will submit slightly more H-1B registrations than they did in 2022, which saw a record of over 483,000.

The lottery has 85,000 openings for new H-1Bs every year, including a subset of 20,000 reserved for individuals with advanced degrees from U.S. colleges and universities.

How many registrants will there be and what are your candidates’ odds? Only time will tell.

Good luck! 🔮

Dear Sophie,

Can I improve my portfolio of accomplishments to establish my qualifications for an O-1A extraordinary ability visa and later an EB-1A self-petitioned green card if I am in the U.S. but don’t have a work permit yet?

— Earnest & Exceptional

Dear Earnest,

This topic is especially top of mind for F-1 international students looking to self-petition a green card, where options for CPT or OPT can be limited. It’s also relevant for B-1/B-2 visitors who are in the U.S. but can only engage in certain activities, as well as J-1 research scholars and H-1B holders authorized to only work for a single employer. Thanks for asking!

Before I dive in, I want to emphasize a few things. Your reasons for coming to the U.S., the visa you obtain, what you say to U.S. Customs and Border Protection (CBP) officers when you arrive, what you do while you’re here and when you leave could all affect future visits or stays in the country. The ability to work and be legally employed as an immigrant in the United States is severely restricted for foreigners and you generally must make a proactive effort to be authorized to work here.

For example, people who are coming to the United States on a visitor visa or the Electronic System for Travel Authorization (ESTA) visa waiver program should disclose if they plan to do any business during their stay in the U.S. so they can be assigned a B-1 business visitor visa or WB (waiver-business). The ESTA program enables citizens of 40 countries to stay in the U.S. for up to 90 days without obtaining a visa.

Sometimes, there can be dramatic consequences if the Department of Homeland Security later determines that an individual worked without authorization while in the United States or committed fraud by acting for a purpose other than the one stated upon entry. These consequences can include the denial of a visa or green card, or even deportation.

As you know, your ability to live and work in the United States or to enter the U.S. in the future can be in jeopardy if you work while on a visitor visa, without authorization if you’re on a student visa or for payment from anyone other than the employer that sponsored your work visa. However, some activities, such as attending workshops or training programs, networking, performing independent research as well as the ones I will discuss below, might not be not considered “work,” depending on how and when you do them.

If you have an immigration visa in the United States, you should always consult an immigration attorney to find out if the activities you want to participate in are authorized under your current immigration status. They will also help you stay on track and allocate your time wisely as you build your qualifications for the O-1A extraordinary ability visa and the EB-1A extraordinary ability green card.

Now, let me dive into what you can do to build up your qualifications to meet some of the eligibility criteria for the O-1A visa and the EB-1A green card. Keep in mind that some of these criteria overlap, so sometimes your attorney can submit the same evidence to meet separate criteria.

Nationally or internationally recognized awards

Receiving national or international awards of excellence is one of the criteria for both the O-1A visa and EB-1A green card. Sometimes awards can include:

• Securing VC funding.
• Acceptance into an accelerator or incubator program.
• Winning a startup pitch competition or hackathon such as Startup Battlefield at TechCrunch Disrupt.
• Winning an award for presenting at a professional association or conference.

Many activities such as meeting with prospective investors, negotiating contracts and participating in professional or educational conferences are not considered as “work” under the B-1 business visitor visa.

Exclusive, invitation-only membership

Being invited or selected to join a group or association that requires outstanding achievements that are judged by recognized experts is another criterion for both the O-1A and EB-1A. These can include:

• Being accepted into an accelerator or incubator program (not a training or educational program) that have stringent selection criteria and a very low selection rate, such as Y Combinator or Techstars.
• Being invited to be an adviser or mentor at an accelerator or incubator program.
• Being selected for membership in organizations such as Forbes Council.

I recommend having at least a couple of these. If they apply and are relevant to your field, several such memberships can be better.

Being featured in professional trade publications or major media

Another criterion for the O-1A and EB-1A is having you or your work featured in several articles in high-profile publications. Cultivate relationships with journalists who write about your field. Offer yourself as a resource to explain the field or challenging issues that arise.

I took this approach when I started my law firm nearly eight years ago to meet all the EB-1A criteria. Since my clients did, I figured I should be able to as well! I soon found myself being quoted as an expert on immigration in publications around the globe, which led to me writing this weekly Dear Sophie column!

Know the audience of the trade publication or media outlet where you’re seeking coverage and figure out the type of stories that get their interest. Reporters like to be the first to break news or to get an exclusive story, so offer a scoop about a significant event involving your company or a story idea, such as an emerging trend in your field or a unique perspective on a big issue, to one reporter to start. If that reporter isn’t interested, move on to another.

For the O-1A and EB-1A, newsletters and press releases that were not published or posted by a media outlet don’t count. Neither do blog posts, posts on Medium or YouTube videos (unless they go viral, in which case your attorney can make an argument in your favor).

Depending on the publication and its readership, being featured or quoted in one to five articles is okay, but six or more is good.

Judge the work of others

Judging the work of others in your field or a related field individually or on a panel, such as at a hackathon or pitch competition, counts for the O-1A and EB-1A, and is usually not considered work. Participating as a judge at least once could be enough, but the more, the better, particularly if they are not well-known competitions.

While you technically only need to meet three of the O-1A criteria or the EB-1A criteria to qualify, I recommend meeting four or more to present a strong case. Other criteria may be available to you depending on your work history and accomplishments outside of the United States as well as your field of extraordinary ability.

Best wishes on your extraordinary journey!

— 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!