Dear Sophie: Banging my head against the wall understanding the US immigration system

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:

Now that the U.S. has a new president coming in whose policies are more welcoming to immigrants, I am considering coming to the U.S. to expand my company after COVID-19. However, I’m struggling with the morass of information online that has bits and pieces of visa types and processes.

Can you please share an overview of the U.S. immigration system and how it works so I can get the big picture and understand what I’m navigating?

— Resilient in Romania

Dear Resilient:

We welcome you to the U.S.! Our country greatly benefits from international entrepreneurs like you who expand here to innovate, create jobs and bolster the global economy.

I followed in my father’s footsteps to become an immigration attorney to fulfill my personal mission of helping people live the life of their dreams in the United States. A big part of making that happen is to give individuals the information and the tools they need to clearly set their immigration goals and to reach them quickly.

Check out my recent podcast where I provide a brief, high-level overview of the U.S. immigration system. The United States is a nation founded by immigrants. The immigration system is based on many of the same values and principles enshrined in our Constitution.

In 1965, the U.S. Congress passed the Immigration and Nationality Act, the foundation of all of our immigration laws today. Although some amendments to the act have been made over more than 50 years since then, the immigration system still operates under the same framework created back then. One of the things I appreciate about this framework is that there are so many legal routes to immigrate to the U.S. that are available.

There are many visa and green card categories you can use to chart your course. As a creative lawyer with plenty of lead time before somebody moves to the U.S., it provides many options to work with. Law doesn’t just place restrictions on people; it can be used as a tool for creation.

So, even though the system has its challenges and can be greatly improved, successfully navigating the system is doable. Everyone from individuals to founders, CEOs at startups and HR and Global Mobility at giant companies, families and couples in love — you just need to know the right questions to ask and the information to empower you to find the right immigration path.

My father used to always say there are five main areas of immigration law:

• Business immigration
• Family immigration
• Asylum
• Appeals
• Removal and deportation

I have worked on cases in each of these areas, but my firm focuses primarily on business and family immigration. Business immigration encompasses both visas and green cards, whereas family immigration only involves green cards that are based on an individual’s relationship to a U.S. citizen or permanent resident (green card holders), including fiance visa and different pathways to green cards.

At a high level, the U.S. offers two types of visas: nonimmigrant visas and immigrant visas. Immigrant visas are also called green cards.

Nonimmigrant visas allow for a temporary stay in the U.S. Each nonimmigrant visa that allows its holder to work in the U.S. requires an employer to sponsor the individual and hire them after approval and arrival. Each nonimmigrant is designed to allow an individual with certain skills, education or expertise that will benefit the employer, the employer’s industry or the U.S in general, such as a multinational executive (L-1) an individual in a specialty occupation (H-1B) or with extraordinary ability (O-1).

Some nonimmigrant visas are based on the candidate’s home country or whether the individual’s home country has a trade agreement with the U.S. Each work visa has different requirements for renewals. I discuss these and other startup-friendly visas and green cards in more detail in a podcast on the most startup-friendly visas and green cards.

A green card allows its holder to live and work permanently in the U.S. and is the first step to obtaining U.S. citizenship. Some nonimmigrant visas lead directly to a green card. However, many do not. So it’s important to be creative and strategic from the beginning of your U.S. immigration journey.

Most employment-based green cards require an employer sponsor. The two exceptions are the EB-1A green card for extraordinary ability and the EB-2 NIW (National Interest Waiver) for exceptional ability. Individuals can apply for these green cards on their own without an employer sponsor or job offer. We cover both of these green cards, as well as the O-1 nonimmigrant visa in Extraordinary Ability Bootcamp, an online course that takes a deep dive into the O-1A nonimmigrant visa, and the EB-1A and EB-2 NIW green cards, for which you may be eligible to apply.

Most international founders and entrepreneurs typically qualify for an E-2, L-1 or O-1 visa, or an EB-1A, EB-1C or EB-2 NIW green card. Take a look at the immigration options chart we created that outlines the most common visa and green card categories that apply to founders, investors and talent.

In addition to the various visa and green card options, you should know that you can apply for a visa or green card while living outside the U.S. or while living inside the U.S. Living outside the U.S., you can apply for a visa or green card at a U.S. embassy or consulate, which is called consular processing. Once living in the U.S., you can apply for change of status to another visa or adjustment of status to a green card. For more information about specific visas and green cards and how to navigate the U.S. immigration system, check out my weekly podcast.

Even during COVID, I’m confident you’ll find your way to the U.S. to begin your journey of expanding your company. I wish you good health and much success in 2021!

Best regards,

Sophie

Have a question? 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 here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!