Dear Sophie: What H-1B and other immigration changes can we expect this year?

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,

I help several startups with HR. I heard the application fees for many visas and green cards are going to increase substantially.

When will those increases go into effect? Are there any other immigration-related changes coming this year? Any H-1B updates?

— Passionate People Person

Dear Passionate,

Thanks for reaching out! Looking into my crystal ball (as well as federal records and drawing on my own decades of experience), I’m happy to provide some thoughts on likely immigration developments ahead. For H-1Bs specifically, it might get easier for founders, including CEOs, to qualify.

Overall, the Biden administration is aiming to reduce case processing delays and backlogs while increasing opportunities for international students educated at American universities and entrepreneurs. The immigration fee increases proposed by the U.S. Department of Homeland Security (DHS), which oversees U.S. Citizenship and Immigration Services (USCIS), and the Department of State, which oversees consular processing, as well as the Department of Labor’s proposal to raise prevailing wage categories, could potentially hinder the growth of startups, but have the potential to help reduce long-standing backlogs in processing times.

Before I dive in further, here’s the recently announced timeline for this year’s H-1B registration and lottery:

Starting on February 23, at 9 a.m. PT, companies or their legal representative can create a USCIS online account if they don’t already have one at myUSCIS. From March 1, at 9 a.m. PT to March 17, at 9 a.m. PT, companies can register H-1B candidates for this year’s lottery and pay the registration fee (currently $10) for each candidate. By March 31, USCIS will notify companies whose candidates have been selected in the lottery. This kicks off the traditional cycle of preparing and filing the full petition to seek an H-1B start date of October 1, 2023.

Now, let’s look at the immigration changes that may be coming this year.

Good news for founder H-1Bs?

According to the federal regulatory agenda, DHS is working on a proposal that would affect H-1B petitions filed on behalf of both startup founders and F-1 students on OPT or STEM OPT. The details of the proposed changes are unclear, but DHS is aiming to issue the proposed rule in October 2023.

The proposal seeks to revise the regulations that require employer sponsors to demonstrate an employer-employee relationship between a startup and a founder for the H-1B visa and “provide flexibility” for founders. Again, it’s unclear just what this proposed rule change will entail, but it’s very exciting!

As background, two things that most startups typically find challenging in demonstrating an employer-employee relationship for a H-1B are: