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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I’m a co-founder of a very early-stage startup. My co-founder and I are considering bringing on a third co-founder, who was recently laid off. She is currently in the United States on an H-1B with a grace period that will expire soon.
What are the fastest, least risky immigration options that we should consider? What’s going on with potential increases to USCIS filing fees?
— Careful Co-Founder
It’s wonderful to hear that you’re expanding your team and supporting your prospective co-founder.
This is the right time to hire international talent, since filing fees for most work visas and green cards will likely increase later this year. The U.S. Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), earlier this month issued a proposal that would substantially increase fees for many non-immigrant visas, and would slow the premium processing time from 15 calendar days to 15 business days (roughly three calendar weeks), among other changes.
For instance, the filing fee for an H-1B application (new, renewal, or transfer) will increase from $460 to $780. DHS is accepting public comments on this proposal until March 6, 2023, and I urge you and other employers, particularly early-stage startups, to weigh in on these changes.
First, buy time
Before I dive into your first question, I highly recommend talking with an immigration attorney ASAP about your prospective hire’s situation and timing. An immigration attorney can suggest strategies tailored to your startup and aimed at mitigating risks. Calculating the grace period after a layoff can be tricky, as it involves a lot of factors, and you want to ensure that your co-founder maintains valid status in the U.S. and has the proper authorization for any required international travel.
Since your prospective co-founder’s 60-day grace period is ending soon, she can get additional time quickly by applying online for a change of status from H-1B to B-1 business visitor status, which will enable her to request to stay in the U.S. for another six months. It will also give you time to prepare an H-1B transfer filing and seek to change her status back to an H-1B or another work visa.
Remember that the B-1 status is not a work visa and does not grant work authorization, which means she will not be authorized to be employed by your startup. However, she can do a few things that immigration officials do not consider as work, such as:
- Attend business meetings or consultations;
- Attend a convention or conference;
- Negotiate contracts.