Dear Sophie: Supporting Ukrainians with H-1Bs and beyond

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,

We’re a startup that currently has an employee, who is originally from Ukraine, working for us on an H-1B visa. He is trying to get his parents out of Ukraine.

We also entered a prospective Ukrainian employee who fled to Poland in the H-1B lottery, but he wasn’t selected yet.

How can we support them?

—United with Ukraine

Dear United,

Thank you for supporting your team and their loved ones, not just as workers, but as humans. When teams (and people) are dealing with adversity such as this, the diversity that can be fostered through immigration builds resilience. Resilience, caring and play are keys to thriving in situations that are volatile, uncertain, complex and ambiguous.

Take a look at the resources and information in my previous column about how to help Ukrainians, such as assisting with travel arrangements and the A26 Backpack, which enables students and professionals affected by war to keep documents secure and accessible. If they can, I recommend that everyone have hard copies of important documents, even expired passports, in case cell phone and computer batteries fail. NAFSA: Association of International Educators also offers a list of immigration resources aimed primarily at Ukrainian students but contains helpful information for all Ukrainians.

As always, I recommend consulting with an immigration attorney who can devise strategies and backup plans based on the unique background and circumstances of your employee, prospective employee and their families.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

Your employee’s parents

Your company can consider paying for travel costs and any legal fees associated with your employee’s efforts to help their parents get to the U.S.

However, your employee should keep in mind that a visitor visa is most likely not a viable option right now. As is the case with most other nonimmigrant visas, both the B-1 visitor visa for business and the B-2 visitor visa for pleasure require demonstrating to immigration officials that you do not intend to remain permanently in the United States and you have a home and a life to return to in your home country.

Only a few nonimmigrant visas allow you to have dual intent, which means you intend to apply for permanent residency (a green card) in the United States. Only the E-2 treaty visa, H-1B specialty occupation visa, L-1 intracompany transferee visa and O-1A extraordinary ability visa allow their holders to have dual intent — and all of these work visas require an employer to sponsor them.

Depending on the education, skills and experience of your employee’s parents, your company could sponsor either parent for a work visa, such as the H-1B, if eligible. If your company did register them for the H-1B lottery before the registration period closed on March 18, 2022, your company can also consider a cap-exempt H-1B position at a university or research institution that is exempt from the H-1B lottery or through a concurrent, cap-exempt H-1B with the help of an organization like Open Avenues Foundation, a nonprofit I’ve collaborated with to help many clients and startups.

Open Avenues Foundation partners with colleges and universities to create H-1B positions for international professionals in STEM and business fields to lead students in experiential learning projects for about five hours per week. Once U.S. Citizenship and Immigration Services approves this cap-exempt H-1B, a private employer is also eligible to sponsor that individual for an H-1B without going through the annual H-1B lottery process. Take a look at this previous Dear Sophie column for more information.

Your employee’s parents could also consider registering this fall for the fiscal year 2024 Diversity Immigrant Visa Program, which is also known as the annual green card lottery. Every year, the U.S. Department of State sets aside 50,000 green cards for immigrants from countries with low levels of U.S. immigration. Each year, the State Department publishes instructions for applying, which includes countries whose natives are eligible. In previous years, individuals from Ukraine were eligible. Here are the instructions for the fiscal year 2023 in English and Ukrainian.

A much longer-term solution — this will take several years — is if your employee becomes a U.S. citizen and sponsors their parents for green cards. If your company hasn’t already done so, consider supporting your employee by sponsoring them for a green card, such as an EB-1A extraordinary ability green card, EB-2 NIW (National Interest Waiver) green card or a PERM green card. Your employee can apply for U.S. citizenship after three years with a marriage-based green card or five years with all other green cards.

Your prospective employee

For your company’s prospective employee, consider helping him get to a safe location in another country and using a global payroll provider to temporarily employ him there as a contractor even ahead of the H-1B lottery and petitioning process.

If he isn’t selected in the H-1B lottery, here are a few alternatives to consider:

• A cap-exempt H-1B that I mentioned above.
• A J-1 educational and cultural exchange visa for specialists, a program administered by the U.S. Department of State that requires working with a sponsor organization.
• The O-1A visa for extraordinary ability has qualifying requirements that are more stringent than for the H-1B, but recent changes have made it easier for STEM graduates, particularly those with a Ph.D., to qualify.
• The diversity visa program mentioned above.

Thanks again for reaching out to me with your questions and for supporting your employees using the tools of U.S. immigration.

All my best,

Sophie

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