Immigration 101

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Immigration 101
Immigration 101

Homebrew's guide to hiring internationally, visas, and navigating the immigration process.

Homebrew's guide to hiring internationally, visas, and navigating the immigration process.

Beth Scheer

Anyone involved in the hiring process at startups knows that we are in a competitive hiring market. Silicon Valley, New York, Seattle, and Los Angeles are competing for top talent -- especially engineering talent. Approximately 75% of these candidates come from outside the US and require work visas to be employed here. As a startup attempting to hire this talent, the process can be daunting if you don’t have the right resources and guidance. The Homebrew Immigration Guide for Startups will help you through the process of hiring someone who is not authorized to work in the US and provide you with the resources needed to make the process as easy as possible.

Interview Process

When a candidate interviews for a job in the US, the interviewer is not allowed to ask “what is your immigration status?” The question must be worded differently. “Are you authorized to work in the US?” You can’t ask if the candidate has a work visa because of the rules outlined by the

Equal Opportunity Employment Commission⁠

. Check out

Homebrew's HR Policy Guide at Startups⁠

if you want to learn more about what’s prohibited by the EOEC.

If the candidate is NOT authorized to work in the United States, she will need your company to sponsor her and provide a temporary work visa such as an H-1B visa. An H-1B visa is a work visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. “Specialty Occupations” refer to jobs requiring a bachelor’s degree. This person can't be required to do admin work - they must work in their respective profession.

Why are visas something I need to be concerned with if I am in a talent function?

Approximately 75% of tech workers in Silicon Valley are not born in the US and will require work visas. If you are scaling a company and need to build an engineering team, chances are some of the candidates you are considering will need one of the following visa types*: H-1B, O-1, E3, TN, F1, JI

*Please refer to glossary for definitions of all these visas.

The main difference between the H-1B visa and the O-1 visa is that the H-1B visa has a cap. The O-1 Visa does not. Additionally, it is easier to obtain the H-1B visa vs. the O-1 visa. It is harder to prove that you are truly at the “top of your field” to qualify for an O-1 visa.

Countries like China, India, and Russia produce some of the top engineering talent in the world. In order to employ these engineers, your company will need to hire them legally, which means granting each one of them a specific type of visa. If you have candidates from Australia, Mexico or Canada, you will need to familiarize yourself with E3, and TN Visas (see glossary below).

Where are all the H1-B visas coming from?

Where are all the H1-B visas coming from?

⁠

SOURCE: Bureau of Consular Affairs, U.S. Department of State

FY 2016 Nonimmigrant Visa Issuances by Visa Class and by Nationality⁠

⁠

How do I make sure the position I’m hiring for qualifies for an H-1B?

The role is a “specialty occupation” requiring a college degree or the equivalent

The role is designated as “professional” by the

US Citizen and Immigration Services⁠

⁠

Does professional mean “senior”? What if I’m hiring an individual contributor technical candidate? It doesn’t necessarily mean senior. It means that the person’s responsibilities have been evaluated according to current standards in the industry.

I’m still not sure if the role meets the requirements. Are there attorneys who specialize in this type of work?

Yes, here are a few that come recommended by friends of the Homebrew family.

⁠

Brown Immigration Law⁠

⁠

Alcorn Law⁠

⁠

Reinhorn Law⁠

⁠

Schwerin and Sumcad Law⁠

⁠

Stephanie Corinna Smith⁠

⁠

Nassim Mahzoon⁠

⁠

What about costs associated with H-1B visas?

When a company hires a candidate though the H-1B visa process, they are committed to renew the visa, process the green card and possibly take care of the candidate’s family visa issues. The basic costs: $460 for base filing fee, $500 for anti-fraud fee, $750/$1,500 for H-1B training fee.

*Costs will increase if you if you use outside legal resources (up to 6K).

What if a candidate has 2 employers -- a full time role and a part time role. One of their employers has a visa in process for them.

Do I need to file a separate application? Yes. Each company needs to file a separate visa application.

Who qualifies for H-1Bs?

Candidate who has completed a BA/BS degree. If candidate does not have a BA/BS degree, experience may be substituted. 3 years of relevant experience is equivalent to 1 year of coursework

Candidate is trained in a specific skill (accountant, software engineer, HR professional, etc.).

Who doesn’t qualify for H-1B?

Candidate who has not completed BA/BS degree or does not have experience that can be substituted.

Candidate is not trained in a specific skill.

How long is an H-1B visa valid?.

If you sponsor the employee for a green card, he may be eligible to extend their total time in H-1B beyond the standard 6 year maximum.

I have to terminate someone who is on an H-1B visa. What happens to them? Can they stay in the US without a work permit?

The termed candidate has 60 days from the date of termination to find another job and see that the new employer files for another H-1B visa OR change their status to another category of non-immigrant visa. If they can’t maintain status (either through finding another job or changing status) within ten days, they must leave the U.S.