Dear Sophie: 2 questions about the latest immigration news

​​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,

Next year, I will be graduating with a master’s degree in finance.

My goal is to co-found a fintech startup while on an F-1 OPT. I heard that I may be able to qualify for STEM OPT given the expanded list of STEM fields. Will I be able to continue working at my startup on STEM OPT?

— Focused Founder

Dear Focused,

Yes, you might be eligible for a 24-month STEM OPT extension in your field of finance based on recent legal updates. The U.S. Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), recently added financial analytics and 21 other fields of study to the list of qualified STEM degrees. Talk to the international student office at your university to confirm your STEM eligibility based on your degree field.

Getting STEM OPT work authorization while continuing to work at the company you co-founded can be complex, so I would recommend working with an experienced immigration attorney. Creating and working for your own company is allowed under OPT, but you can only qualify for the STEM OPT extension if you can demonstrate that despite your co-founder status, you have a bona fide employment relationship with your company and that all regulatory requirements are met.

Under the STEM OPT requirements, your company must also devise a formal training plan and learning objectives for you and enroll in the USCIS E-Verify system.

You’ll want to ensure your startup complies with all STEM OPT requirements and obtain guidance on other immigration options that will enable you to continue living, growing and thriving with your startup in the U.S. Your future startup should also consider registering you for the H-1B lottery if you qualify.

This year’s registration period is from March 1-18. Qualifying for STEM OPT gives you more chances to be selected in each year’s H-1B lottery, and your company can register you multiple years in a row.

Expanding the list of qualified STEM fields for STEM OPT is part of a larger effort by the Biden-Harris administration to expand immigration policies to attract and retain global STEM talent, spur innovation, and strengthen the U.S. economy. The new policies also affect the J-1 educational and cultural exchange visa, the O-1A extraordinary ability visa, and the EB-2 NIW (National Interest Waiver) green card. Discuss with your attorney if any of these other immigration options might work for you.

Last night, in fact, President Joe Biden said in the State of the Union Address:

We can do all this while keeping lit the torch of liberty that has led generations of immigrants to this land — my forefathers and so many of yours.

Provide a pathway to citizenship for Dreamers, those on temporary status, farm workers, and essential workers.

I believe that you and many others pursuing advanced education and creating leading-edge startups in the United States would definitely be considered “essential workers,” so let’s focus on getting immigration reform through as well.

Best wishes for your journey.

— Sophie

Dear Sophie,

What’s the latest on the startup visa that was introduced in Congress last year?

— Founder in Florida

Dear Founder,

The startup visa is still alive in Congress! Last month, Rep. Zoe Lofgren’s (D-CA) startup visa — which was included in her Let Immigrants Kickstart Employment (LIKE) Act — was added to the America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength (COMPETES) Act (H.R. 4521).

The America COMPETES Act, which the House recently passed along party lines, is the House’s version of the Senate’s U.S. Innovation and Competition Act (S. 1260.) It is a sweeping bill that seeks to invest in domestic semiconductor manufacturing and boost research and technology to make the U.S. more competitive against China. The Senate approved its legislation last year. Pretty cool, right? We sure are excited.

The House legislation creates a W (non-immigrant) visa category for startup founders and essential employees who have an ownership stake in their startup, and they and their startups meet certain qualifications.

To qualify for a W visa for an initial three years:

• The startup must be a U.S. corporation that is less than five years old.
• The W visa candidate must have at least a 10% ownership stake in the startup.
• The W visa candidate must play a central and active role in the startup.
• The startup must have received at least $250,000 from U.S. investors or at least $100,000 in federal, state, or local government grants.

There’s more! Families of W visa holders would be eligible for dependent W visas. The legislation allows for W visas to be extended for three additional years if certain conditions are met. W visa holders can become eligible for green cards, which are exempt from the annual numerical and per-country limits.

In addition to creating a startup visa, the America COMPETES Act also would exempt individuals and their families from the numerical and per-country limits on green cards if those individuals have a doctoral degree in a STEM field.

If you can spare a bit of time, you can help to generate support for the startup visa: share your entrepreneurial journey with your senators to encourage them to include the startup visa in the Senate competitiveness bill, and let them know why a startup visa is needed to keep the U.S. competitive and innovative.

In the meantime, if you’re looking for options that are available to you right now, consider International Entrepreneur Parole (IEP). Please note that the minimum investment and grant requirements increased by nearly 6% last year. Take a look at this previous Dear Sophie column in which I talk about the IEP and other visa and green card options for startup founders.

Be sure to check back here for updates on the startup visa.

—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!