Here’s another edition of “Dear Sophie,” the suggestions column that addresses immigration-related questions about operating at innovation companies.

“Your concerns are crucial to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” states Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you remain in individuals 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:

A extremely intense and appealing foreign nationwide who finished from a U.S. university has actually been working for our company and simply got a STEM OPT extension. We wish to keep her on after her STEM OPT ends. We registered her in this year’s H-1B lottery game, but unfortunately, she wasn’t picked.

Offered the obstacles of getting an H-1B through the lottery game and the #h 1bvisaban, how can we bypass the H-1B and potentially sponsor her for a permit?

— Eager in Emeryville

Dear Eager,

Pleased to hear you want to sponsor a promising graduate from an American university for a permit. Seems like you have an interest in exploring the EB-2 or EB-3 permit with the PERM process. For extra resources, do not hesitate to have a look at my current

podcast on PERM. Since U.S. migration policy frequently runs counter to keeping the finest and the brightest college graduates in the U.S. does not suggest there isn’t hope, just. Some options exist for these gifted folks and the companies that want to employ them, although numerous employment-based permits require candidates who are impressive in their field. Current graduates often haven’t yet developed their work experience and qualifications, however there can be paths forward.

Although it may provide some immigration dangers to the prospect that ought to be weighed thoroughly in collaboration with a knowledgeable business migration lawyer, lots of companies have been doing as you suggested: sidestepping the H-1B visa and directly pursuing a permit. This is frequently due to the incredibly competitive H-1B lotto and high rejection rates for preliminary H-1B petitions and extensions. Also, a moratorium on all green cards, H-1B, H-2B, l and j visas for people currently outside the U.S. is in effect until the end of this year. This now makes it nearly difficult for the majority of companies to sponsor people to come to the U.S. unless their work is in the nationwide interest or vital to the U.S. food supply chain.

Many individuals are looking for options. The essentials: Since your STEM OPT employee is currently in the U.S., and the H-1B lotto now only costs $10 to sign up a candidate, I recommend that your company continue to enter her in the lotto as a backup option in case her F-1 STEM OPT status ends before you can secure her a green card.

The permits for which most recent graduates would be eligible need the sponsoring company to go through the PERM labor accreditation process prior to filing a permit petition. Independently there are other permits for extraordinary capability which I’ve also discussed.

PERM, which represents Program Electronic Evaluation Management, is the system utilized for requesting labor certification from the U.S. Department of Labor. Please talk to a lawyer about the timing of this procedure and consider any dangers to your worker’s individual immigration situation offered her current F-1 nonimmigrant status.

Labor accreditation must be submitted to U.S. Citizenship and Migration Provider (USCIS) with EB-2 and EB-3 permit petitions. Labor certification confirms that no U.S. workers are certified and readily available to accept the job used to the green card candidate and utilizing the green card candidate will not adversely affect the earnings and working conditions of American employees.

Without understanding more about your STEM OPT staff member’s background and credentials, I would assume that she may be able to qualify for one of these employment-based green

cards: Both of these green card categories need the employer sponsor to go through the PERM labor accreditation procedure. Because PERM is a complex procedure and will figure out if you can continue with sponsoring your worker for a green card, I suggest that you work with a knowledgeable immigration attorney.

In basic, PERM needs employers to take these steps:

  • Figure out in information the responsibilities and minimum requirements of the position
  • Submit a prevailing wage demand
  • Go through a comprehensive recruitment process
  • Get a certification

The responsibilities and requirements of the position ought to be detailed and typical for your company– not customized to the green card candidate. These requirements and duties will be utilized for job publishing during the recruitment process.

In more information, companies should submit a fundamental wage request to the National Prevailing Wage Center of the Labor Department. The dominating wage is determined based on the position, the geographical place of the position and economic conditions. The employer must pay the prevailing wage or greater for the position to ensure that employing a foreign national would not adversely impact the wages of U.S. workers in similar positions. This process can take a few months.

The most time-consuming of these actions is the recruitment process to figure out whether certified U.S. workers are readily available for the position. To do that, a company needs to market the job in two Sunday editions of a regional newspaper, send a task order with the state labor force company ( CalJOBS in California) and file an internal company notification of the filing. Strategy ahead with your legal team to consider running some things in parallel to reduce the general time.

For professional positions, employers need to use 3 extra recruitment approaches, such as using a task recruiting site, an employment firm, a task fair, a posting at a career placement center at a local university or college, or incentives for employee referrals.

The task order with the state workforce company must run for at least 30 successive days. The internal job posting need to be up for 10 consecutive business days. Companies need to allow thirty days for candidates to apply and interview U.S. employees who apply.

Generally, if there are no qualified applicants, employers then submit ETA Form 9089 to the Labor Department. No supporting documents need to be sent with the type, but the documents need to be kept for 5 years, especially as there could be an audit. The Labor Department will send a confirmation email to the company along with a sponsorship questionnaire, which the employer needs to complete within a week of receiving it. It is very important to not miss this email!

The PERM procedure can take anywhere from three to 8 months as long as the Labor Department does not audit your case. The Labor Department performs 2 types of audit: random audits and targeted audits. Random audits are done to ensure companies are following the PERM procedure.

Some common reasons for targeted audits could include:

  • The employer recently laid-off workers
  • The prospect appears unqualified for the position
  • The job does not require a bachelor’s degree
  • A company executive is connected to the prospect

The Labor Department generally releases an audit notification within six months of getting the labor certification application, and the company should react within one month. An audit does not indicate an employer’s PERM will not be authorized. It can add 9 to 18 months to the procedure. If a company does not react to the audit notification, the Labor Department will deem the case deserted, and for any future PERM applications, the company may be needed to perform monitored recruitment.

When the Labor Department authorizes the PERM Labor Certification for that position, you must submit the green card petition to USCIS within 180 days. If your worker was born in any nation aside from China or India and you are sponsoring her for an EB-2 green card, you can file the I-140 green card petition and the I-485 change of status from F-1 STEM OPT to EB-2 at the exact same time, presuming the “concern date” is still existing.

If eligible, your STEM OPT worker could also enter the diversity permit lottery in the fall to increase her possibilities of getting a permit. Each year, 50,000 permits are booked for individuals born in nations that have low rates of migration to the U.S.

Let me understand if you have any other questions. Good luck!

— Sophie

Have a concern? Ask it here. We reserve the right to modify your submission for clearness and/or area. The information offered in “Dear Sophie” is basic information and not legal suggestions. For more information on the limitations of “Dear Sophie,” please see our complete disclaimer here. You can call Sophie straight at Alcorn Immigration Law.

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

Article curated by RJ Shara from Source. RJ Shara is a Bay Area Radio Host (Radio Jockey) who talks about the startup ecosystem – entrepreneurs, investments, policies and more on her show The Silicon Dreams. The show streams on Radio Zindagi 1170AM on Mondays from 3.30 PM to 4 PM.