With the H-1B lottery imminent, how should we approach recruitment abroad? – TechCrunch

Here’s another edition of “Dear Sophie,” the council column that answers immigration-related questions about working in technology companies.

“Your questions are crucial to the dissemination of knowledge that enables people around the world to rise above boundaries and pursue their dreams,” said Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in People Ops, a founder, or looking for a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

We are an early-stage startup that – like many other companies – faces a significant challenge when it comes to recruiting talent. We have not advertised positions internationally, but we have received some applications from international talent.

It’s all new territory for us. What is your advice to hire internationally? I also know that the H-1B lottery is fast approaching.

Can you explain a little more about this process?

Eager start-up in the early stages

Dear eager,

Yes, the H-1B lottery is fast approaching! The period for registering H-1B candidates opens in March; there are a few steps companies must take before then if they have never participated in the H-1B lottery process before. First, be sure to set up an account with the US Citizenship and Immigration Services (USCIS), which runs the lottery. Based on this timeline, your company should determine as soon as possible whether the positions you are seeking to fill and the potential international talent you are seeking to hire will qualify for an H-1B Special Occupancy Visa.

Check out my column in TechCrunch + last week for more details on the lottery process. To bypass the H-1B lottery – or if a candidate is not selected in the lottery – your company could consider getting an H-1B exemption for the candidate. Transferring a person’s H-1B to your startup is also an option. To find out more about that process, take a look at this Dear Sophie column.

A future-oriented lens on international hiring

I recently had a fascinating conversation with Jamais Cascio, a futurist and a prominent fellow at the Institute of the Future in Palo Alto. Cascio has a wonderful insight that is relevant to your question.

The population of the United States is getting older, and the birth rate is declining; as such, we increasingly have to look at immigration to keep our economy going. Cascio discusses three mindsets to deal with radical change in this chaotic world in order to remain strong as a company and succeed in the future. This advice is extremely useful for companies like yours when you start hiring from abroad.

The three mindsets that Cashio said would benefit companies are:

  • Resistance: To be able to withstand a shock on the system without breaking. For example, he said companies that have just-in-time delivery models are very crazy and prone to breakdowns compared to those that have built-in slack in their system. Building in slack often requires additional resources and reduced efficiency and profit, but offers built-in resilience.
  • Improvisation: Stay creative and agile and be ready to embrace change.
  • Empathy: Probably the most critical of the three, this involves acknowledging humanity in others, and what we do matters to others now and in the future. (I loved hearing that the role of the heart is and will be crucial to business success!)

Embracing these mindsets while developing an immigration strategy that offers stability to international talent will be the key to attracting and retaining talent and creating a corporate culture that fosters innovation and perseverance. Listen to my podcast, “Tips for Businesses to Support Valuable People,” where I discuss this in more detail.

A composite image of immigration attorney Sophie Alcorn in front of a background with a TechCrunch logo.

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

Specific visas to consider

Before we dive into visa specifications, be aware that I recommend that you consult an experienced immigration lawyer who can help you develop an immigration strategy for potential international hires, as well as provide guidance on which visas would be appropriate in consideration of the job opening and the potential candidate. Take a look at a former Dear Sophie column where I provide an overview of immigration-related matters you should focus on if your startup does not yet have someone handling HR.

O-1A visa

If your potential hires do not get through the H-1B lottery process, as I mentioned above, or you need to get them here sooner than in October, and you can not take the risk that they may not be selected in the H-1B lottery this year, a great option is the O-1A extraordinary ability visa. More and more of our startup customers are choosing to pursue it for key executives and individual contributors with niche expertise. While the bar for qualifying for O-1A is much higher than for H-1B, the process of getting an O-1A is much faster. And O-1A does not have an annual cap or lottery process to contend with.

Visa for talent from specific countries

There are specific visas for talent from Australia, Canada, Chile, Mexico and Singapore.

If the job applicant is an Australian citizen, an E-3 visa will allow that person to work in the United States in a specialty employment, just like an H-1B. E-3 visas also require the sponsoring employer to submit an employment application to the U.S. Department of Labor, as required by H-1B applications. There are a maximum of 10,500 E-3 visas available each year.

Is the job candidate a Chilean or Singaporean citizen? If so, the candidate may qualify for an H-1B1 Special Occupation Visa, which is an H-1B visa earmarked for nationals of Chile and Singapore. Thanks to special treaties that the United States has with these two countries, professionals can qualify to receive H-1B1 visas on a fast-track basis. Every year, 1,400 H-1B1 visas are reserved for Chileans and 5,400 are reserved for Singaporeans – and rarely are these visas completely exhausted.

Professionals from Canada and Mexico can come to the United States to work under a TN visa, which was born out of trade agreements between Canada, Mexico and the United States. TN visas are limited to professions listed in treaty agreements, but most of these jobs overlap with H -1B specialty professions.

Some good news: By the end of 2022, consular officials can now waive the requirement for a personal interview for some people applying for some non-immigrant (temporary) visas, including H-1Bs and O-1s. Individuals applying for a visa in their country of residence or nationality may have the interview waived if any of the following apply:

  • Previously issued any kind of visa.
  • Never been denied a visa unless it was overcome or waived.
  • No exclusion.
  • Citizens or nationals of a country participating in the Visa Waiver Program.

Wishing you every success!

Sophie


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The information in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie”, 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 would like to be a guest, she accepts applications!

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