Ask Sophie: I work at OpenAI on an H-1B. How can I explore immigration independence?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

I signed the OpenAI letter threatening to leave unless the board resigns. I’m an AI engineer on H-1B. I went through PERM and my EB-3 I-140 got approved. However, my priority date isn’t current yet. If Altman isn’t able to return, how can I stay in the U.S. and start exploring new opportunities at AI startups?

— Emboldened Employee

Editor’s note: This situation is likely resolved with the return of Sam Altman as OpenAI’s CEO. But the column reflects the reality of foreign workers throughout Silicon Valley and the United States, and as such, we feel the advice in the article is worth publishing. Read past columns by Sophie Alcorn here.

Dear Emboldened,

I admire your courage in standing up for what you truly value to sign this letter even though it may have put your ability to remain in the United States at risk. Standing up for your values even when they run counter to your self-interest speaks to the tenacity, grit, and determination of immigrants and the value you add to this country. Especially this Thanksgiving week, I’m thankful to you!

Rest assured, I’ve got your back! The good news is that the Biden administration has signaled its desire and commitment to attract and retain talented AI engineers such as you here in the U.S. What’s more, talented AI engineers are in very high demand by employers across the board, from early-stage startups to the biggest tech companies. Take a look at the Executive Order that President Biden issued in October and this Ask Sophie column.

Let’s dive in to discuss the ways to remain in the U.S. and start exploring new opportunities at AI startups.

Exploring new opportunities

As an AI engineer, you’ve got many options! You could stay at OpenAI for now and find a part-time job at an AI startup on the side. Before you take that step, look at the fine print in your employment contract with an intellectual property attorney to make sure this is an option. You could leave OpenAI and look for a new position at an AI startup, but keep in mind you would only have a 60-day grace period or you would have to get a B-1 business visitor visa. Last year during the tech layoffs, the U.S. Citizenship and Immigration Services (USCIS) clarified that the 60-day grace period can apply even if you leave your job and that you can look for a new role while in B-1/B-2 status.

There’s lots of early-stage pre-seed money available for generative AI startups if you wish to start your own company, even as an immigrant. More than $40 billion in VC funding poured into AI startups during the first six months of 2023, according to PitchBook. Moreover, AI companies have received more than a quarter of the total investments in all startups in the U.S. this year, more than double compared to last year, according to Crunchbase.

Keep in mind that because OpenAI sponsored you for the H-1B specialty occupation visa, you can only work for OpenAI. If you want to work for another startup — or create your own — that startup will need to either transfer your H-1B or sponsor you for another visa. Many folks look to a concurrent H-1B as a source of layoff insurance if they can qualify.

Recently the Biden administration made it easier for H-1B holders to become founders. Here’s my video and column explaining the recent new guidance on owner-beneficiaries. Now you can own the majority of your company, not give up control to a three-person board, and still qualify for an H-1B!

For the startup route, I recommend consulting both an immigration and a corporate attorney. An immigration attorney can guide you in structuring your startup for immigration success and devise an immigration strategy based on your circumstances and long-term goals. A corporate attorney can advise you on setting up your startup.

Now, let’s dive into visa options.

Visa options

If you resign from your position at OpenAI, you will get a 60-day grace period to remain in the United States and look for a new job. Because two months is not a lot of time to find a new position and get your immigration paperwork sorted, submitted and approved, you can apply for a B-1 business visitor visa, which is good for six months. However, the minimum wait time if you’re applying while in the U.S. is 9.5 months, which means your grace period would run out before you even receive B-1 status! You could apply for the B-1 now as a backup if you are leaning toward this option.

You could transfer your H-1B visa to another AI startup or your own for either a part-time or full-time position. If the company is a new startup, its Federal Employer Identification Number (FEIN) must first be verified by the U.S. Department of Labor. It must then file a Labor Condition Application (LCA) with the Department of Labor (DOL) for certification. If the LCA is certified, the startup can submit an H-1B petition to the USCIS. The petition can be filed with premium processing, which ensures that the USCIS will make a decision or request additional information within 15 days.

You can begin working when the startup receives a receipt notice from the USCIS. However, keep in mind that the H-1B is good for a maximum of six years and your employer cannot extend your H-1B unless the USCIS approves you for a new I-140 green card petition, which I will discuss in a moment.

Another option is for an AI startup or your own to sponsor you for an O-1A extraordinary ability visa, which is the quickest visa option available. Like the H-1B, the O-1A is eligible for 15-day premium processing. But unlike the H-1B, no LCA is required and there’s no limit on the number of times the O-1A can be renewed. Take a look at this previous column for details on how to qualify for the O-1A. Remember, you don’t need venture funding to qualify for an O-1A.

The most flexible option is getting an O-1A that is sponsored by an agent to allow you to keep your OpenAI job for now while exploring additional roles in the field without the need to file an amendment or a completely new visa petition should you choose to change jobs entirely or take on another.

I know there’s a lot of talk that startups, particularly those that are early stage, are not equipped financially to handle the legal costs of immigration sponsorship. But it’s quite doable for an early-stage startup or small company to take on immigration sponsorship. Most visas transfer easily, except for the L-1 visa for multinational transferees, the E-1 visa for treaty traders and the E-2 visa for treaty investors. But remember, even these can be replaced.

Moreover, smaller startups can — and should — learn how to handle immigration matters since many of the world’s most talented AI engineers were born outside of the United States.

Green card self-petition options

The EB-1A extraordinary ability green card and EB-2 NIW (National Interest Waiver) green card both allow you to file a green card petition on your behalf without an employer sponsor or job offer.

Currently, individuals born in India and China face long waits for green card numbers to become available. The good news for you is that you can use your priority date — the date that your PERM application for your EB-3 green card was filed to DOL — to keep your place in the green card line. That means when you file a new I-140 green card petition either for the EB-1A or the EB-2 NIW, you can use your old priority date to determine when to file your I-485 form to register permanent residence or adjust status, the last step in the green card process.

It’s much easier to qualify for an EB-2 NIW green card than an O-1A visa. However, for individuals born in India and China, the wait time is much longer for the EB-2 NIW than for the EB-1A.

The EB-2 NIW is for individuals with a master’s or higher degree or exceptional ability whose work is in the national interest. To demonstrate exceptional ability in the AI field, you would need to show 10 years of experience, high salaries, invitation-only memberships or invitations to speak at conferences, and other recognition in your field. You must also show that your work is in the national interest, which is rather easy given Biden’s recent executive order on AI and if you line up another job in the AI field and could even be bolstered if you intend to become a founder. Here’s my column on the EB-2 NIW implications of the president’s recent AI executive order.

While the bar for qualifying for the EB-1A is much higher than the EB-2 NIW, we’ve had great success getting EB-1As for individuals working in the AI field. For the EB-1A, you must demonstrate that you meet at least three — although we typically recommend at least four for a strong application — out of 10 criteria. The criteria include things like receiving nationally or internationally recognized awards, invitation-only memberships in organizations in your field, making original contributions, judging the work of others, press coverage of you and your work, receiving a high salary, and authorship of published articles. Accomplishments such as serving on AI committees for government bodies or working groups on AI and ethics at an organization, getting patents or developing breakthrough inventions would all count. We could potentially even argue that you played a critical role at OpenAI as an engineer and signatory on the letter!

Remember, America needs you. All in all, we want the next Google, OpenAI and SpaceX to be founded in the U.S. Your courage in standing up for your values and signing this letter against your personal self-interest speaks to the value you add to this country.

My wish for you is that any inflection point may support you to follow your dreams! You’ve got this!

— Sophie

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