Practical Immigration Guide for Students, Founders and Startup Teams

Oct 5, 2026

Video Summary

In this session, five Ellis Porter attorneys walk international students, founders, and the companies that hire them through the full US immigration journey, from finishing a degree to getting a green card. The conversation is organized around four stops: staying in the US after graduation, building a company as a founder, hiring international talent, and settling permanently through a green card.

The attorneys open with where the biggest recent changes stand as of October 1, 2026, including the $100,000 H-1B fee (currently blocked by a court and not being collected), the new wage-weighted H-1B lottery, the proposed rule to end “duration of status” for F-1 students (also blocked), increased scrutiny of green card applications filed inside the US, and stricter visa vetting and travel rules. They then cover OPT, STEM OPT, and cap-gap; what to do if you are not selected in the H-1B lottery; visa options for founders, including the O-1A and the eight criteria used to qualify; how to match each type of hire to the right visa, with real government filing fees; and how PERM, the EB-2 National Interest Waiver, and EB-1A green cards work alongside the Visa Bulletin.

The session closes with current approval-rate data, two real case studies where non-traditional applicants won approval after a Request for Evidence, a round of “myth or fact,” and three example journeys that show how planning a step ahead changes the outcome.

Key Takeaways

The $100,000 H-1B fee is not being collected right now. A federal court has blocked it. A separate, proposed $103,265 fee is not in effect. Both could change.
The H-1B lottery now favors higher wage levels. Reported selection odds ranged from about 15% at wage level 1 to about 61% at level 4. A US master’s degree still matters.
Not being selected is not the end of the road. Cap-exempt employers, the O-1, TN, E-3, H-1B1, L-1, concurrent H-1B, and trying the lottery again are all options.
Founders can sponsor themselves. The O-1A lets your own company be the petitioner (with the right structure in place), with no lottery and no cap.
Build your evidence over time, not in a month. USCIS looks for sustained acclaim and has challenged cases where all the evidence appeared in a short window.
Green cards are “lanes on a highway.” PERM, EB-2 NIW, and EB-1A all end in the same place at different speeds, and you can pursue more than one at a time.
Your place in line depends on your country of birth, not your citizenship.
Plan travel for the worst case. Expect in-person interviews, processing in your home country, public social media, and possible delays of weeks or months.
This is general information as of October 1, 2026, not legal advice. Many of these issues are being litigated and can change quickly.

Speakers

Arvinder Ubhi, Partner, US Expansion Practice (moderator)
Julie P. Levey, Director, O-1 Visa Practice Group
Gilberto Orozco Jr., Attorney, Employment-Based Immigration
Natalie Puletti, Attorney, High-Skilled Immigration
Nadia Langworthy, Senior Attorney, High-Skilled Immigration

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Full Transcript

Introductions

Arvinder Ubhi: Well, welcome, everyone, to our session today, Campus to Company. My name is Arvinder, I’m a partner with Ellis Porter, and we’ll be walking you through the steps to go from studying in the US all the way through. How do you stay here? What do you do when you’re looking to make your first hire? And then, when you love the US so much you want to settle here, what routes do you have to obtain a green card?

So today we’re going to have several phenomenal attorneys from Ellis Porter talking to you. As I mentioned, my name is Arvinder. I’m a partner with Ellis Porter, and I run our US expansion practice. So I predominantly work with founders and entrepreneurs who are looking to enter the US market for the first time. They can be owner-operated companies through to scaling and growth companies, and they can be privately or VC backed. We predominantly work on new office L-1s, E-2 investor visas, traditional L-1s, TNs, and H-1Bs as well. And with that, I’d like to turn it over to my colleague Julie to introduce herself.

Julie P. Levey: Hello. My name is Julie Levey, and I am director of the O-1 visa practice group at Ellis Porter. I handle O-1 visas as well as related green card processes for extraordinary ability and national interest waivers for various professionals who are high achieving, including entrepreneurs, founders, creatives, and tech professionals.

Gilberto Orozco Jr.: Hi everyone. My name is Gilberto, or Gil for short, and I primarily focus on the alphabet soup, supporting tech companies with bringing foreign nationals to the US. So that includes H-1B visas, H-1B1s, TNs, E-3s, L-1s (both the L-1A and the L-1B), and J-1s. And then for folks that want to pursue a green card in the US, that would be the PERM and the EB-2 I-140, and then they’re able to get their green card in the US.

Natalie Puletti: Hi, everyone. My name is Natalie Puletti, and I’m an attorney on Ellis Porter’s high-skilled immigration team. I work mostly on I-140 petitions and O-1s for researchers, engineers, and founders. I also have experience with EB-1s. I’m excited to walk through the section on making your stay in the United States permanent.

Nadia Langworthy: Hi everyone. My name is Nadia Langworthy. I’m a senior attorney here at Ellis Porter, and I’ve been with the firm for a few years. I specialize in NIWs for entrepreneurs and other nontraditional clients, O-1s, EB-1As, and EB-1Bs. Looking forward to working with you.

The Four Stops on the Journey

Arvinder Ubhi: Okay. So today we’re going to be talking about four broad stops that we think are important in your journey through the US.

The first is staying in the US. You’ve come to the US. You may be studying in the US. You may be on a dependent visa. How do you stay in the US to fulfill your endeavor or the opportunity that you have here?

The second is going to be how do you build in the US? So you’ve started to develop a business. What’s the next step? If you’re here as a student, what can you do after you’ve graduated to continue building the business or the idea that you have?

The third stop is going to be how do you hire? So now you may be in a position where your business is starting to get some traction. You’re looking to make your first hire. Some of those hires may require sponsorship. So what do you look for, and what opportunities would they have?

And then the fourth stop is going to be: you’ve been in the US, you’ve laid roots in the US, you love your time here. And now we’re looking at longer-term strategies, which are called immigrant visas, or green cards in short. So how do you transition from coming into the US, staying, building, and then staying in the US long term thereafter?

About Ellis Porter

Arvinder Ubhi: So a little bit about Ellis Porter. We are a US immigration law firm. We’re proudly headquartered out of Detroit, Michigan. We also have an office in the UK, in London, which I oversee myself. The firm has been operating for about 20 years, and we have over 330 immigration professionals across 35 different states, which puts us in the top five largest law firms. And we have one of the largest high-skilled immigration teams.

The firm itself is broadly split up into three practice areas. We have our employment-based, or corporate immigration, team. There we work with clients across multiple different industries, including automotive, technology, healthcare, pharma, and engineering as well.

Then we also have our B2C, or family-based, immigration teams. They’re working with clients who may be looking to get married to a US citizen. They may want to work on family unity and bringing their loved ones to join them in the US. There may be some issues that individuals have encountered in the past in the US, and they may be facing deportation, and we have a team that can handle those too. We also have a team that handles citizenship. So those individuals who have permanent residency in the US, or a green card, and are now looking to take their final step and become US citizens, we’ve got a team of attorneys who can handle those cases as well.

And the final grouping is our high-skilled immigration team, and this is one of the largest in the country. We focus very heavily on highly skilled individuals, and that would encompass individuals who would otherwise qualify for O-1 visas, EB-2 National Interest Waiver green cards, and EB-1 green cards as well.

I think it’s worth noting that although we are headquartered in Detroit, US immigration law is federal, and so we are able to support clients all across the US, and we do it very successfully as well. Sometimes there are areas of law in the US that are state specific, and you do need to work with an attorney that’s based in your state for that particular issue. Immigration is not one of those areas. You can work with an attorney based anywhere, in any country, as long as they are licensed to practice.

Where Things Stand: Major Immigration Changes as of October 1, 2026

Arvinder Ubhi: Over the past few years, we have seen huge and substantial changes in immigration law. It’s constantly moving. It’s a very fluid area right now, so I think it’s worthwhile going through some of those changes, because there’s a lot of misinformation. There’s a lot of information out on the internet, on various forums, people talking about them, miscommunicating them. So we want to take this opportunity to go through some of the larger changes and talk about where they currently stand. When we’re talking about them, we’re talking about October 1st, 2026. So if you’re watching this recording after this date, there may be some changes to the current state of play.

The $100,000 H-1B Fee

Gilberto Orozco Jr.: I know it can be a bit overwhelming trying to keep up with all that is changing with the current administration, so we want to make sure that everybody who is trying to keep track of it knows where we stand as of today. The biggest one that I think most people are familiar with is the $100K fee that applies to H-1Bs.

This came into effect last year, and those that went through the H-1B cap lottery this past year were probably faced with the question of whether they would do consular processing versus change of status, and that brought into play the $100K fee. Now, that fee has been extended until September of 2027. But the good news is that currently it’s not being collected. There has been movement in the courts that has blocked it from being enforced, and so at this moment, it is not being collected by USCIS. It is subject to change, but at the moment you are able to file an H-1B, request consular processing, and not be subject to it.

Change of Status vs. Consular Processing

Arvinder Ubhi: Before we go into the next change, a quick question. Can you explain the distinction between consular processing and a change of status, and why that was important in the context of the $100,000 fee?

Gilberto Orozco Jr.: Absolutely. A change of status applies to folks that are currently in the US at the time of filing. There’s no further action for them other than remaining in the US while the case is pending. Once approved, their status automatically changes from their current status, whether it’s F-1 or TN or E-3, whatever it may be, to H-1B on October 1st, October 1st being the beginning of the government’s fiscal year.

Folks that were in the US but had travel plans, or wanted a bit more flexibility on when they switch over to H-1B, or folks that were outside of the US and wanted to enter the US in H-1B status, would opt for consular processing. Those three buckets of folks were impacted directly by the $100K fee, because if they filed the H-1B petition as consular, they would be subject to it.

Arvinder Ubhi: Okay. So in March of 2026, companies and individuals who were looking to apply under the H-1B lottery were faced with this choice. “Do we go ahead and apply? I’m outside of the US. I may be subject to the $100,000 fee.” That put a lot of people off, and so you saw the number of H-1B registrations drop quite drastically, to just over 215,000 registrations, which was substantially lower than previous years.

But if you are a student in the US on an F-1 visa, and you said, “I want to apply for this H-1B. I’m not going to leave the US until after my H-1B is approved if I’m selected, and I’m going to ask USCIS to change my status internally from F-1 to H-1B,” then as we talk today, on October 1st, those individuals would not have been subject to the fee. And this block by the court has pushed that further out, until next year.

So for anyone, as we’re speaking today, who is looking at the H-1B, keep that in mind going into the next cap season in 2027. This is probably going to be something that comes up again. There may be changes. Be aware of what it is. Understand the distinction between a change of status and consular processing. Understand the impact of traveling internationally if you are looking to do an in-country change of status.

The Wage-Weighted H-1B Lottery

Arvinder Ubhi: Okay, so let’s now talk about the other big change that we saw come in: the weighted wage levels. Take us through what that was briefly, and where it currently stands.

Gilberto Orozco Jr.: Absolutely. In the past, the cap lottery was a random selection process, with 65,000 slots made available for people that had either a US bachelor’s or a foreign bachelor’s degree, and an additional 20,000 slots for anybody that had a US master’s or higher. That US master’s was basically the only way to increase your odds of being selected.

Now, with the change in the lottery process, it also includes what wage you’re being offered. When attorneys are strategizing a case for an H-1B, we look at the work location, the role that’s being offered, the salary, and the requirements for the role, and then we map it to a prevailing wage level. That prevailing wage level is now being submitted to USCIS at the registration stage, which previously it was not. And that increases your odds of being selected: the higher the wage, the more entries. That took effect this past lottery year.

Arvinder Ubhi: And I think it’s worth noting here, some people will say, “Well, why don’t I just get my employer to pay the highest wage that they possibly can?” You could potentially do that. But it’s really important, from a compliance perspective, that all other individuals at that same position and level are treated the same way as well. The Department of Labor is looking into that, so bear that in mind as you’re going through that analysis.

The Proposed Second $100,000 Fee

Arvinder Ubhi: Next. We’re not seeing double here: there is another $100,000 fee. Talk us through the second $100,000 fee.

Gilberto Orozco Jr.: Yeah. Once that initial $100K fee was blocked, the government tried to get a bit creative, and they came up with another $100K fee. This one specifically is $103,265, and it would apply to all cap cases, not just those seeking consular processing. It would also apply to folks seeking a change of status. The good news is that this has only been proposed, and it’s not in effect. We’re closely monitoring it to see if it comes into play for the upcoming lottery.

Duration of Status for F-1 Students

Arvinder Ubhi: Okay. So watch this space. Moving on to fixed dates for F-1 students. What does that mean, and where does that stand?

Gilberto Orozco Jr.: Absolutely. Folks that enter the US in F-1 status are not given a fixed period of time on their I-94. When they check their I-94, it says “D/S,” which stands for duration of status. This allows them to stay in the US until they finish their program, if they’re eligible for OPT, and so on, and they’re not limited to a fixed time.

The government tried to change this so that folks would no longer have duration of status on their I-94, but instead a fixed end date. This was going to take effect this past month, in September, but fortunately it was blocked by a court. So as of now, duration of status continues.

Arvinder Ubhi: And that’s really important for students. If you’re in the US, everyone should understand the role the I-94 plays in maintaining your status. Every time you enter the US, you should check your I-94. And if there are changes, particularly for F-1s, if a date certain is going to be put onto the I-94, it’s absolutely critical that if you are one of the individuals impacted, you get into the habit of checking your own I-94 upon every entry. That should be common practice.

Green Cards Filed Inside the US

Arvinder Ubhi: All right. Shifting gears slightly to green cards now. What’s the impact of the changes on green cards and filing in country?

Gilberto Orozco Jr.: Yeah, I think it comes as no surprise that we’re seeing a lot of scrutiny being applied across the board with this administration, and this applies to those seeking a green card in the US. There was a memo published in May of 2026 under which officers have more discretion as far as whether or not to approve a case, and whether or not to request additional information if necessary. And of course, this is also causing longer delays in the processing of these green cards. So for anybody pursuing a green card in the US, just know that officers are now able to apply greater discretion and request additional information that maybe in the past wasn’t being requested.

Arvinder Ubhi: Right. So for decades we’ve had zero issues filing in country. Now this change means there could be additional scrutiny placed on it. And the focus here, from the government’s perspective, is that they want individuals to go back to their home country and apply for a green card at the consulate or embassy. Why can’t individuals who would otherwise apply in the US for a green card just go back to their home country and apply for the green card there?

Gilberto Orozco Jr.: Okay, yeah. So timing is critical. Family unity. Some employers who are sponsoring green cards may not have the ability or the business case to say, “You can go to your home country and process the visa.” We’re not necessarily talking about days or weeks. It’s several months to get through those processes.

Visa Vetting and Travel Bans

Arvinder Ubhi: Okay. And last but certainly not least, visa vetting and travel bans.

Gilberto Orozco Jr.: Yeah. I think a lot of people may have already encountered this issue if they’ve traveled internationally. We’ve seen delays at consulates obtaining visa stamps, and people getting stuck in administrative processing. This all relates to the visa vetting and the travel ban that’s been in place. In the past, people were often able to skip the in-person interview and get a waiver. Now, most people are required to attend a visa interview. At the interview, they may have to disclose their social media, which is already being disclosed when they complete the DS-160. And there’s also a list of specific countries that are restricted from traveling to the US. So if you are traveling internationally, it’s always good to check with your counsel to make sure you are aware of any potential issues or delays that could come up.

Arvinder Ubhi: And if there are changes, sometimes they come literally overnight. So if you are traveling and you need to process your visa, and you’re going to a country that may have enhanced scrutiny applied to it, you really need to be mindful of that. There could be delays in processing your visa. They will probably be outside of your control, and that may result in several days, weeks, or even months of delay.

Where we see this most is, one, making sure you’re communicating with your employer if you’re employed through a sponsorship program, so they’re aware that you are traveling internationally and they’ve got buffers in place should the worst happen and you are delayed. And then also with family members. Sometimes someone will say, “I’ve got a business trip in the UK, so I’ll process my visa while I’m there, and my spouse and children will process their visas the next time we travel as a family.” Well, if there’s a delay, and there’s a change to the visa bans overnight, that could impact your family unity. So bear that in mind. I think it’s more important than it ever has been to be mindful of whether you can come back when you are traveling internationally, and to plan for the worst-case scenario.

I also think it’s worth noting that a lot of these are live and active issues. They are being litigated. There could be changes. There could be situations where what we’ve talked about today isn’t the same outcome in a week, a month, or six months’ time. So bear that in mind. This is just general guidance, not intended to be legal advice. These issues are active, they’re fluid, they’re moving.

Stop 1: Staying in the US After Graduation

Arvinder Ubhi: So that brings us to the first stop in the journey. How do you stay in the US? You’ve gone through college here. You’ve put the blood, sweat, and tears into getting a degree. How do you stay here? What routes are you going to be looking at? All right, Gil, over to you to talk about what to do post-graduation.

OPT, STEM OPT, and Cap-Gap

Gilberto Orozco Jr.: Absolutely. Like I said, you’ve already done the hard work, and now you want to pursue a career in the US. Most folks in the US pursuing a degree will be in F-1 status, and after they complete their degree, they’ll be eligible for what’s referred to as OPT. This is a 12-month period where they can work in the US. It’s important that you file your OPT up to 90 days before the program end date, or within 60 days after. No more than 90 days of unemployment should be accumulated during this period.

If you pursue a degree in science, technology, engineering, or mathematics, you are also eligible for an additional 24-month period of employment authorization, referred to as STEM OPT. For this, your employer must sign a training plan, which outlines what you’ll be doing during this period and makes sure it’s relevant and related to your course of study.

During this period, most folks are also trying to get an H-1B registration selected. If you are working with an employer to register you in the lottery and you are selected, there is something that may come into play in certain situations, referred to as the cap-gap. If you are reaching the end of your initial OPT and you’re not eligible for STEM, or you’re reaching the end of your STEM OPT EAD, then as long as the H-1B petition is filed, one, as a change of status, and two, prior to the expiration of your current EAD card, you will benefit from cap-gap. That basically extends both your work authorization and your status in the US through April of the following year.

This Year’s H-1B Lottery by the Numbers

Arvinder Ubhi: Okay. So let’s talk a little bit about the lottery and some of the numbers around what happened this year.

Gilberto Orozco Jr.: Yeah. As Arvinder mentioned earlier, registration was lower this year than in prior years. There were 211,600 registrations, down about 38.5%, and it was the first year we saw wage-based selection. Here is some data that shows your odds of being selected under this new lottery system. For those at a level 1 wage, about 15% odds of being selected. Level 2, 31%. Level 3, 46%. And level 4, 61%. So the likelihood does increase based on your wage level.

It’s also worth noting that about 71% of folks that were selected held a US master’s or higher, so that still does come into play. But now you’re also taking the wage level into consideration, and about 17% of the selections were at the lowest level, level 1. So as you start talking with your employer about whether they will sponsor an H-1B petition for you, it’s also good to discuss where your wage falls and how it would map in the cap registration.

Arvinder Ubhi: Okay. So what we’re seeing here is lower overall numbers, and higher selection rates for individuals who have advanced degrees and whose wage level falls into level 3 or level 4. But that doesn’t necessarily mean that if you’re an entry-level employee, you just graduated with a bachelor’s degree, you have no experience, and you’re coming in under that level 1 entry position, you’re not going to get selected. It just means your opportunity may be slightly lower under this new weighting system.

Timeline of the $100,000 Fee

Arvinder Ubhi: Okay, so let’s go back to the $100,000 fee and break that down a little bit more.

Gilberto Orozco Jr.: Absolutely. Here’s the life cycle of this over the last year. It came in in September of 2025, and again, it was the $100K fee that applied to certain H-1B petitions, only the ones seeking consular processing. In December of 2025, a court upheld the fee. In June, a court moved to vacate it. Then in July of this year, the Fifth Circuit refused to pause that ruling. In August, they proposed the other $100K fee, the $103,265 fee. And in September of this year, it was extended. But again, as we mentioned earlier, this has been blocked by the federal court. So as of today, as of this recording, it’s not being collected and does not apply to consular processing H-1B petitions. But again, watch this space. It could change. Hopefully it doesn’t.

If You Weren’t Selected in the H-1B Lottery

Arvinder Ubhi: Okay. So now let’s talk about what happens if you weren’t selected. Does that mean it’s absolutely the end of the road? Well, no, it doesn’t. There are multiple routes you can explore to stay in the US, and we’re going to give a very high-level overview of some of them.

The first is a cap-exempt H-1B. If you work for a university or nonprofit, you would not be subject to the H-1B cap. So if you’re working for one of those employers, they wouldn’t have to go through the lottery process. Julie, do you want to give a really quick overview of the O-1? Then you’re going to give an in-depth analysis a little later on.

Julie P. Levey: Sure. The O-1A visa is available to people who can qualify based on their extraordinary ability in their field, which could include science, business, tech, even creative fields. There’s no lottery, and there’s no cap on the number of O-1 visas that can be approved in a year. It’s also renewable indefinitely, as long as you keep working in your field, unlike the H-1B, which usually has a six-year maximum. So it is a great option if you can qualify.

Arvinder Ubhi: Perfect. Then we have this group of free trade visas: the TN, the E-3, and the H-1B1. The TN is open to individuals who are Canadian or Mexican citizens and who fall into a very defined group of professional positions. The E-3 is very similar to the H-1B, but it does not have a lottery. You have to show that the job in the US requires at least a bachelor’s degree to perform it, and that you have a degree in a related field. Most importantly, it’s only available to Australian nationals. So if you’re from Australia, it’s a great option, and a really quick way to get into the US and get working. The H-1B1 is, again, similar to the requirements of the H-1B, but available only to individuals from Singapore.

The L-1 is an intracompany transfer visa. If you have worked for an employer outside of the US that has an entity in the US, within the past three years, you may be eligible for an L-1. You can look back three years. So if you came to do a master’s degree that was a year long, and you love it in the US, that could open the door to working in the US as a manager, executive, or specialized knowledge worker.

And Gil, why don’t you give us a really high-level overview of what a concurrent H-1B is and how it works?

Gilberto Orozco Jr.: Yeah. In certain situations, somebody might be interested in working for a second employer, or maybe starting their own company and pursuing a founder’s H-1B, whichever it may be. You are able to file a second H-1B as concurrent employment, which does not impact your current H-1B with your current employer, allowing you to work for both employers properly.

Arvinder Ubhi: Okay. And the final option we’ve got there is trying again. There is no prohibition on trying multiple times in the H-1B lottery. It’s not a one-and-done situation. You can apply as many times as you like. In fact, if you are eligible for a STEM OPT extension, we normally recommend, if your employer is willing to do it, taking as many bites at the apple as you can get, because you don’t know if you’re going to get selected. If you wait until the third year of your OPT and STEM OPT, you may miss your opportunity. But if you get it in your first year of OPT, great. You’ve got that in your back pocket, and you can absolutely use it. So if your employer is willing and you have the capacity, take as many opportunities to get selected in the H-1B lottery as you can.

Traveling in 2026

Arvinder Ubhi: Okay. So, traveling in 2026. We’ve covered some of this. In short, you really should be mindful of traveling internationally. There are travel bans in play. Embassies are routinely updating what they require. There can be delays. There can be canceled appointments.

Visa interview waivers are very rare. Some embassies used to say, “If you’ve had a visa in the past and you’re applying for one in the same category, or even a different category, we’ve already vetted you. You can just schedule your appointment, send in your passport, we’ll do a couple of reviews, and then we’ll send it back to you.” It was a really nice, quick, seamless process. Those are incredibly rare now. Don’t rely on them. Expect that you will have to go for an in-person interview.

They are also stopping third-country processing. What does that mean? Well, you used to be able to pick an embassy, and as long as that embassy was happy to accept you for visa processing, you could go there. That was really important for individuals who may not be able to easily travel back to their home country, because it would require more stops, or there could be some unrest there, or they just didn’t have plans to go back. We were able to leverage embassies outside of their home country. Now, the Department of State is requiring that you process in your home country or your country of residence.

Social media is another big issue we’ve seen come up with several clients who have not made their accounts public, particularly in various categories: F, M, J, and H-1B holders, and applicants from Mexico as well. The embassy will delay your visa processing because they want to be able to see your social media. So make sure your accounts are set to public before you go into the embassy.

Some countries are more known for longer processing times and more extensive reviews. India is one of those countries, particularly in the L-1 categories. So make sure you’re factoring in sufficient time to go through those processes and accounting for any unexpected delays. Think about your employer and make sure they’re aware of what you’re doing. Have contingencies in place if there are delays, particularly for family as well. If you think it’s going to be a quick trip home or to another country to process your visa, consider what happens if there are delays. Will your family be okay in the US?

For anyone on an F-1 visa, it’s really critical that you are consistently reviewing and monitoring your I-20. The travel signature has to be within six months. So before you leave the US, make sure you’re in touch with your DSO at your school, that you’ve got your I-20, that it is endorsed, and that it’s within that six-month period. Carry things like your recent pay stubs and a job offer letter as well.

And this has always been something we’ve recommended, but it is particularly important now: check any travel restrictions before you leave. Again, these can come up unexpectedly and overnight, so there’s no way to foolproof against this. But certainly you shouldn’t be leaving the US and going into a travel ban country, or a country that has travel restrictions imposed upon it, without expecting some sort of impact on reentry into the US.

Stop 2: Building, From Employee to Founder

Arvinder Ubhi: Okay, this brings us to the second step in our journey. We’re now talking about building, going from an employee to a founder. We’ve stayed in the US, we’ve got our degree, and we’ve figured out our initial step of staying. Now we’re looking to build on that. So what routes do we have? Julie, do you want to go over the core routes?

Visa Options for Founders

Julie P. Levey: Sure. We’ll go deeper into each of these, but there are several visa options for founders. The O-1, as I mentioned, is one of those great options if you can qualify based on your extraordinary ability in your field. It’s a very evidence-heavy process. You do need a lot of documentation. It works out especially well for founders with traction, press, and funding. Also if you have a background in academia, or articles you’ve authored, things like that. There are a lot of different ways to get creative and make this work. If you have a strong background, your own company can serve as your sponsor.

There’s also an H-1B that is possible if you’re a founder. So that’s also an option, though as we discussed, there’s still the lottery selection and cap if the company is not cap exempt, and there are some requirements in terms of the ownership interest you’re allowed to have.

The E-2, for nationals of treaty countries investing in their own company, is an option as well, and we can get more into that. It’s not available to every nationality. For example, foreign nationals from India and mainland China would not be able to get an E-2. So it’s only available to certain people.

The International Entrepreneur Rule is technically an option, but it’s very limited, and we’ve really only heard of a few ever being approved. So it’s not something that’s frequently used. It’s for a very specific type of early-stage founder with qualified US investors. So it could be an option, but it’s not something we would use very often.

A Note on International Entrepreneur Parole

Arvinder Ubhi: And it’s important to note here, this is a parole status. It’s not a visa. In talking with both the Department of State and other attorneys, embassies don’t understand what to do with this when they get it. So although it exists, and the requirements to qualify are relatively clear, embassies really struggle with how to handle it. What you typically find is that it just gets pushed from desk to desk, and you never hear from them. Trying to coordinate and follow up with US embassies is an incredibly difficult task. If you ever want to test your patience, that’s a great way to work on that skill set.

And even when you do get in front of the embassy officers, they struggle with, “Well, what does a qualified investor actually mean?” These are typically not being sent to industry experts who would be able to make that distinction. So it exists, but it’s very rarely used. Incredibly rarely used. And where it is used, it comes under a lot of scrutiny, because the officers just don’t want to be the person trying to figure this out and entering you into that status. So understand it’s there, it’s just not typically used in practice.

Self-Petition Green Cards: EB-2 NIW and EB-1A

Arvinder Ubhi: Okay. Now let’s talk about the self-petition green cards, because I’m sure a lot of people have questions about how they work.

Julie P. Levey: Yeah. There are two different ways you can sponsor yourself for a green card without an employer: the EB-2 National Interest Waiver and the EB-1A for extraordinary ability. It’s really a two-step process: first getting the petition approved, and then the actual green card adjustment of status.

The NIW and EB-1A are both facing very high rates of RFEs and denials right now, or just lower rates of approval than in the past. So there is high scrutiny, but we’re still getting a lot of these approved for strongly qualified applicants. They each require different things: showing that your work is in the national interest and of national importance, or, for the EB-1A, that you have achieved a very high level of success in your field. So it’s a very fact-dependent analysis to see if you qualify.

It is also a lengthier process than most temporary nonimmigrant visas. So a lot of people will start with an O-1 or H-1B and then transition to the green card, or do them simultaneously, just to have belts and suspenders in place while waiting for the green card, since that’s a longer process.

Arvinder Ubhi: Yeah, I think that’s a really important point. We speak with clients, and inevitably their friends, or people on WhatsApp or Slack channels, will say, “Hey, I got a green card through the NIW, you should do this.” What they omit is that they’ve probably spent years on an H-1B or an O-1, which gives them work authorization in the background while they pursue the green card, which is the longer-term strategy.

So, like we’ve said, you’ve done the hard work to get to the US and study for your degree. You’ve now transitioned that into a nonimmigrant visa. It’s really critical that you’re working with a competent immigration attorney who understands your mid-term options, those nonimmigrant visas, and how they play into your longer-term strategy. It gets pretty deep when you look at your country of birth, feasibility, and which preference category you’re applying under. There’s a huge number of moving pieces, so setting that strategy up from the outset is really important. Understanding the interplay between a nonimmigrant visa and a green card route is critical, because it’s a multi-year process in many situations.

How Founders Qualify for the O-1A

Arvinder Ubhi: This is Julie’s wheelhouse. This is where she specializes, and she has done a phenomenal job with lots of our clients, particularly cases where, at first look, it may not be very clear that somebody would qualify for an O-1. She’s the person in the firm we go to, and she’s like, “Yep, I got this.” So why don’t you talk about how you qualify for an O-1, and how we’ve used some really creative pieces of evidence for individuals who don’t necessarily fit the researcher and scientist background that a lot of people believe the O-1 is about. It’s sometimes referred to as the “Einstein visa,” but we’ve used it really successfully for founders and entrepreneurs. Over to you, Julie.

Julie P. Levey: Yeah, thanks. The O-1 is a great visa option because of the things we mentioned before. There’s no lottery or cap, and it really can be renewed indefinitely. And as I mentioned, a founder can have their own company serve as the petitioner, with certain requirements in place, such as a board of directors with independent firing powers. So there are certain things you need to be aware of, but generally, as a founder, you can have your own company sponsor you for the O-1.

To qualify, besides having a qualifying job offer and a US company serving as petitioner, you need to show that you satisfy at least three of the criteria. This is specifically for the O-1A, which covers science, business, and athletics. There’s also an O-1B visa, which is for the arts. But for the O-1A, which is where we find most founders, there are eight categories. We try to get creative to fit evidence into each category, and we try to satisfy as many as are worth trying for, as long as it’s not frivolous.

Awards. Being accepted into an accelerator program, pitch competitions, and various prizes. Sometimes we can also use funding from prestigious VC firms for this. So if you’re building your profile, definitely submit yourself for prizes, awards, and selections that are very selective and prestigious.
Membership in selective associations that judge their members based on achievement. Not just paying a fee and satisfying a couple of criteria. It has to be a very selective process to join.
Press coverage about you and your work. Not press releases or social media content, but genuinely independent media coverage about you and your work. It could be announcements about seed funding raises, or articles profiling you. Those would all count.
Judging. This could include hackathon judging, accelerator selection panels, and peer review for those with an academic background. It’s often a category that’s relatively easy to get if you are well known enough in the field to receive invitations to serve as a judge.
Original contributions. This is usually one of the harder categories, because you can have a patent or research that others have adopted, but we really need to prove to USCIS not only that you have this patent, product, or novel innovation, but that others have used it and actually implemented it. It can be subjective, so it’s easy for USCIS to challenge. But again, there are creative ways to make it a strong case, and a lot of founders have developed novel products and methods that are being used. So it is an often-used category.
Scholarly articles. A lot of founders come from an academic background, though it’s not required at all. But if you have authored articles in the same field you’re working in, they will count here.
Critical role with distinguished organizations. If your company has already built a distinguished reputation and you’ve been leading it, for example on OPT, we can use this. Or if you’ve held previous positions, whether in the US or abroad, we could potentially use this category.
High salary or compensation, whether you will be earning a high amount in the future or have in the past. Equity can sometimes be a factor too.

So there are a lot of options to work with. We take a look at your profile and see what makes the most sense to argue for.

Why Timing Your Evidence Matters

Arvinder Ubhi: Okay. So if I’m sitting here watching this and I say, “Look, I think I have the makings of a solid O-1, but I just haven’t done anything yet. Next week I’m going to call up some people. I’m going to send a bunch of publications out. I’m going to try to judge six hackathons. I’m going to get my patents coming through.” How does USCIS review evidence that’s really crammed together? Is that still a solid case, or should you be thinking about this a little longer term?

Julie P. Levey: Yeah, that’s a good question. Ideally it would be spread out over the longer term. I have seen USCIS challenge a case to say, “It looks like all of your evidence happened during a one-month period.” So they are aware that people work on profile building a lot. They’ve also caught on to the fact that you can pay to publish an article, or pay to win an award, that kind of thing. They are very aware of those things. So I wouldn’t want to rush all the evidence into a short period of time. They really do look at sustained acclaim, showing that you’ve built a career. It doesn’t have to be over ten years, but at least not just over the course of a couple of months.

Arvinder Ubhi: Okay. So the takeaway here is: if you think, “Maybe not now, but in the future, I’d have a strong O-1 profile, and that’s a great route I’d like to explore,” start taking those opportunities to get published, get citations, get involved, and look at memberships that may be rare or unique in your particular industry or field of endeavor. It’s a really good idea to start building that background sooner rather than later, so that when you come to the point of saying, “I need to transition from my F-1 OPT, and my options are maybe an O-1 or an H-1B,” you can say, “Here’s what I’ve got. How does this look?” based on the lay of the land at that particular time.

Stop 3: Hiring Global Talent

Arvinder Ubhi: All right, we’re moving on to the third stop of our journey, which is hiring. How do you build a team with global talent? You’ve spent the time getting a degree. You navigated that bridge step to get your nonimmigrant visa, whether it was an H-1B, O-1, TN, E-3, or H-1B1. Now you’re trying to find the best talent, and some of the best talent is going to come from individuals who need sponsorship. They may be in the shoes you were in two or three years ago. So what routes do you have?

We’re going to play a little bit of a game here, and I’m going to put Julie and Gil on the firing line. We’re going to match the visa to the particular candidate. That’s really important, because immigration is not a cookie-cutter process. What worked for some people in the past doesn’t necessarily work for the individual you’re looking to hire.

Matching the Visa to the Candidate

Arvinder Ubhi: So, if you’ve got a candidate who is finishing school and they’re on an F-1 visa, Gil, what would you look towards?

Gilberto Orozco Jr.: They would move on to their OPT or STEM OPT, which allows them to work in the US for either one year or a total of three years.

Arvinder Ubhi: Okay, perfect. And in that time, they can also take a stab at getting selected in the H-1B lottery. All right, I’m going to stick with you for the next one. You’re looking at a candidate who is working for Company A, currently on an H-1B. What can you do to bring them over to your company?

Gilberto Orozco Jr.: Yeah, this would be what we call an H-1B transfer, basically porting their work authorization and H-1B status from Company A to Company B. The good thing about this process is that they don’t have to go through the lottery again. They’re able to just switch over to the other employer. In fact, the rules allow them to start working as soon as the H-1B petition is filed. So if there is an urgency for them to join your team, there’s that option as well.

Arvinder Ubhi: Okay, fantastic. I’m going to try and tackle this one. Now we’ve got a candidate who is Canadian or Mexican. We’re going to look to the TN visa, provided the individual is working in a qualifying professional position. Canadians can apply for it at a Class A port of entry, so it’s really fast and pretty cost effective. Mexican nationals do have to go through the US embassy or consulate in Mexico to first apply, but otherwise the scrutiny is relatively low. It’s a great option for individuals from those countries, and there’s no lottery either.

Same if the candidate is Australian or from Singapore. They have those free trade visas, the E-3 and the H-1B1 respectively, which can be applied for at the US embassy in their home countries. There’s no lottery process they would have to go through. So again, a really great route for them.

Okay. You’ve found a candidate, Julie. They have a phenomenal track record. A superstar overachiever. What are they going to have?

Julie P. Levey: Yeah, I would definitely look at the O-1 for them. There’s no cap and no lottery, and they can be from any country. So if they have a stellar background of achievement, an O-1 would be a great option, and probably the fastest one for them.

Arvinder Ubhi: Okay. And Gil, you’ve found a candidate who has worked with your foreign company, affiliate, or subsidiary outside of the US for at least a year. What are we going to look towards?

Gilberto Orozco Jr.: We would look at the L-1. If they are entering the US to work in a managerial or executive role, we look at the L-1A. If they are entering the US for a non-managerial or non-executive role, it would be the L-1B.

Arvinder Ubhi: Perfect. And then your candidate is a long-term key hire. What are we going to do with that individual?

Gilberto Orozco Jr.: We want to get them a green card in the US, and there are different routes to do that. The traditional one is the PERM process, which is when an employer sponsors your green card. If you’re interested in having this person remain in the US, it’s best to start that as soon as possible, given the lengthy processing time with the Department of Labor.

Arvinder Ubhi: And I always think it’s useful to think of the green card process as lanes on a highway. They will all get you to the same end result, which is having the green card issued. The difference is the process and how fast you get there. Sometimes the PERM-based route is the slow lane, while the EB-2 NIW and EB-1 categories can get you there much faster, in the fast lane. But again, it’s critical that you understand the interplay between your nonimmigrant visa strategy and your green card route.

What It Costs to Sponsor an Employee

Arvinder Ubhi: So now we’re going to go over some costs. Gil, what are we looking at? We find a candidate and we want to start working with them. Is this going to be something I need new financing for?

Gilberto Orozco Jr.: Absolutely. When a company is looking to invest in having somebody work for them for an extended period of time, they want to know how much it’s going to cost, right?

If you’re going to have somebody go through the lottery system, there is an initial government fee of $215. This is just to get them into the lottery. If they are selected, additional government fees come into play. These vary depending on the size of the company, anywhere between $2,000 and $3,000. But at this point, you’re excited because they’ve been selected, so you’re willing to move forward.

Depending on how urgently you need results back from USCIS, there’s also the option of premium processing, for an additional government fee of $2,900. For the H’s, the O’s, the L’s, and the I-140s, it’s a 15-business-day turnaround. For NIWs and EB-1Cs, it’s a 45-day turnaround.

Now, you’ve decided you want to keep this person in the US longer, so you’re going to kick off the green card process, and you’re going the traditional route with PERM. The good news here is that there are no filing fees with the Department of Labor, but there is a lengthy period of time to keep in mind, and some additional costs may come into play with the recruitment process. Just so you know, it’s a three-step process:

First, you get a prevailing wage determination from the Department of Labor, which tells you how much this person should be paid once they get their green card.
Then you go through a recruitment process, where you see whether any willing and able US worker could fill the role.
And third is actually filing the PERM with the Department of Labor.

There is no guaranteed processing time. If you are looking into doing this step, you can count on it taking at least a year to a year and a half, if not longer, depending on DOL processing times.

Once the PERM comes back certified, you’re ready to move on to step two and lock in that priority date, so you move on to the I-140 petition. The fee there is $715, plus an Asylum Program Fee of $600. If you have a smaller company with 25 or fewer employees, that would be $300. Those are the fees for that petition.

Then, once their priority date is current, we want to get this person the green card. There is an additional government fee of $1,400 for them to apply for the green card and hopefully be here permanently, working for your company.

Arvinder Ubhi: Okay. So it’s worth noting again that these fees are accurate as of today, October 1st. They can change. This gives you an idea of the types of fees you may be responsible for paying under the various processes, and there are a multitude of different fees. So again, work with your immigration attorneys to make sure you’re analyzing them correctly.

It’s a good idea, at the outset of an individual’s journey, not just to think about how you can get somebody in the seat tomorrow and what that would take, but also what it means longer term. If they only have two years left on their H-1B, you’ve got to move pretty quickly on the PERM. There’s a bigger analysis and strategy that goes into hiring an employee who requires sponsorship, because you need to think about how you get this person in, and then how you keep them. So bear those concepts in mind. Speak early and often with your immigration counsel, and understand the strategy involved.

Stop 4: Settling in the US With a Green Card

Arvinder Ubhi: All right, let’s get into the fourth section of our journey. We’re going to talk about how you settle in the US. We’ve talked about how you came into the US, how you stayed, how you built a company here with nonimmigrant visas, and how you thought about your first hires in the US. Now we’re at the stage where you love the US and you want to lay roots here. So we’re going to talk about immigrant visa, or green card, options. With that, I’m going to pass it over to Natalie to discuss those routes.

Three Common Roads to a Green Card

Natalie Puletti: Starting with the big picture: almost every employment-based green card follows the same two steps. Step one is the I-140, which is an immigrant petition. That’s where either you or your employer prove that you qualify for a category. Step two is the actual green card application itself. If you’re in the United States, that’s Form I-485. If you’re abroad, you go through a US consulate. And once you have your green card, citizenship generally opens up after five years.

What changes is the road you take to get to step one, and we have three common ones here.

PERM. The first is PERM, the traditional employer-sponsored route. Before your employer can file the I-140, they test the US labor market, which basically means they take a series of steps to ensure there’s no qualified US worker who can fill the role. This takes well over a year, but your place in line for the green card is set on the day the PERM is filed. So this really works best for long-term employees who are committed to an employer.

EB-2 National Interest Waiver. The second option is the EB-2 National Interest Waiver, also known as the NIW. No job offer and no employer is needed. You can file for yourself. You need an advanced degree or exceptional ability, and then you show three criteria under a case called Matter of Dhanasar. In plain English, what does that mean? Is your work important to the country? Are you well positioned to move it forward? And on balance, does it make sense to skip the usual labor test associated with PERM? (See our breakdown of EB-2 NIW requirements.)

In our practice, something we commonly see with the NIW is that the goal is really to describe the work in a way that communicates you are coming to, or remaining in, the United States to bring about something that will really matter to the United States. Not just to your company. So something like “I run a data analytics business” is a harder case to make than something like “I build privacy tools that help companies comply with data laws.” Same person, different framing. You’ll see a real example of that in one of our case studies.

EB-1A for extraordinary ability. And finally, the third possible road is the EB-1A for extraordinary ability. Again, no employer is needed. You qualify with either a major award or by meeting three of ten criteria. It often means a shorter wait for people born in India and China, so if you can qualify, it definitely helps if you’re from one of those countries.

One important thing to keep in mind is that meeting three criteria for the EB-1A isn’t necessarily the finish line. USCIS looks at the whole record as part of its final assessment and asks whether you’re truly at the top of the field. That second look is one of the reasons approvals have dropped, which you’ll see on the data slide coming up. (More on EB-1A requirements.)

And one last thing that surprises people: you don’t necessarily have to pick one road. A company can run a PERM while you file your own NIW.

Filing Both: NIW First, Then EB-1A

Arvinder Ubhi: That’s great. And do we see, in practice, individuals looking at both an NIW and an EB-1A, because the criteria are slightly different and potentially a lower standard?

Natalie Puletti: For sure. Typically, if we have a client who could theoretically meet both standards, the NIW and the EB-1A, we recommend going the NIW route first, because the threshold is lower than the EB-1A. When you file, you receive a priority date, and if your NIW is approved, you retain that priority date for a later EB-1 petition. This is called porting the priority date. In other words, you can use the earlier NIW date to get a better, more favorable place in line in the EB-1 queue.

Arvinder Ubhi: Okay. So you could have somebody with impressive credentials who maybe doesn’t meet the EB-1A profile yet, but they could get their place in the green card line through the EB-2 NIW, use that opportunity to build up their EB-1A profile, apply for that at a later date, and keep their place in line.

Natalie Puletti: Yes, absolutely. That’s what we commonly see with people who choose that route.

How to Read the Visa Bulletin

Natalie Puletti: Okay. So picking the road is half of the question. The other half is how long the line is, and that’s what the Visa Bulletin tells us. Every month, the State Department publishes the Visa Bulletin. What we have on screen here is the October 1st, 2026 bulletin, which marks the start of the government’s new fiscal year.

Two terms make the Visa Bulletin readable. The first is your priority date. As we mentioned, this is your place in line. For PERM cases, the day you file the PERM application becomes your priority date. For the NIW and EB-1, as we were just talking about, it’s the date your I-140 is filed. The dates in the table are cutoffs. If your priority date is earlier than the cutoff, you can move forward with the second step of the process, which is applying for your green card.

There are two charts each month. Final Action Dates show when a green card can be approved, and Dates for Filing show when you can submit your green card application. For October 2026, USCIS is letting employment-based applicants use the Dates for Filing chart, which is the table you see here.

To make that concrete, let’s say you were born in Brazil and your NIW was filed in February of 2026. The Rest of World date right now is March 15th, 2026, so in October, you could file your green card. If your NIW was filed in May, you’d wait.

A detail that catches a lot of people is that your line is based on your country of birth, not your citizenship. For example, if you were born in India but hold a Canadian passport, you’re in the India line.

If you look at the box just below the table, we have the Final Action Date for Rest of World EB-2. It moved backwards, to January 1st, 2025. We call that retrogression, and it’s a reminder that this line unfortunately doesn’t always move forward. If this happens to you, it’s frustrating, but it’s not the end of your case. If your application is already filed and pending, you can generally keep your work permit and travel document while you wait. It just can’t be approved until the Final Action Date catches up.

For people born in India and China, the waits are unfortunately measured in years. The advice is the same, just more urgent: get your I-140 filed, and hopefully approved, early, because that’s what locks in your place.

And finally, if you’re on an H-1B: the H-1B normally has a six-year limit, but an approved I-140 generally lets you keep extending past six years, and it can make your H-4 spouse eligible for a work permit. Even before approval, a PERM or I-140 pending for more than one year can also support extensions. So the planning point is to count backwards. You want that filing in place at least a year before you hit your six years. And again, these dates change every month. If you’re watching this after October 2026, please check the current bulletin, or check with us, before making any decisions.

Arvinder Ubhi: Before we jump into the data, I think before we leave this slide, it’s really important to pause. There’s a huge amount of information here, and it can be quite dense to digest. For anyone who’s getting to this stage and exploring their longer-term strategy of staying in the US through a green card, understanding how the Visa Bulletin works is really critical. Understanding that it’s your country of birth that dictates your line, not your country of citizenship, is important. And understand how your short- and medium-term immigration strategies play into this.

As we discussed, the H-1B can be extended once you have an approved I-140, or your PERM has been pending for over a year. But not all nonimmigrant classifications allow that. So individuals who came on an L-1, for example, who are going to be subject to a backlog because their country of birth is China or India, may want to consider going through the H-1B lottery sooner rather than later, so they’re buying themselves the opportunity to further extend their work authorization in the US. And as we’ve discussed, there’s no guarantee your case will be selected in the H-1B lottery. So if you’re in an alternative visa category that cannot be extended, giving yourself every bite at the apple in that lottery process is critical at the planning stage.

Approval Trends: O-1, EB-2 NIW, and EB-1A

Arvinder Ubhi: As we’ve seen over the past couple of years, there has been substantially increased scrutiny in a lot of categories, and that has definitely included O-1s, EB-2 National Interest Waivers, and EB-1As. So we’ve created this chart to give you some understanding of where they’re at. We’re comparing the full year of FY25 against FY26 up to Q3, which runs through April to June 2026, so pretty recent data. You’ll see a pretty substantial decline in approval rates in the EB-1A category. O-1s have stayed pretty reliable throughout that period.

But on the nonimmigrant visa side, we are seeing changes to Request for Evidence deadlines. They used to be around 90 days. We’re now seeing them issued with 30 days to respond, which is a really quick turnaround. There also seems to be an increase in Requests for Evidence in the O-1 category. So bear that in mind if you’re looking at the O-1. Nadia, walk us through the EB-2 National Interest Waiver and the EB-1As.

Nadia Langworthy: Sure, no problem. As you can see, this chart depicts past and present approval rates across O-1s, EB-2s, and EB-1As. As Natalie discussed earlier, EB-1A approval rates have dropped significantly compared to previous trends. The EB-1A is already a very high threshold for people to meet, and recent standards are making it even more difficult.

For the NIW, you can see it’s roughly 50/50. It’s all about how you frame the proposed endeavor. It’s important to strategize that and shore up as much evidence as you can for the three Dhanasar prongs.

Comparatively, the O-1 is still a reliable bridge. It’s not that first step to a green card the way an I-140 petition is, but it’s a reliable bridge to that first step. You can see about nine in ten O-1s are approved, and that percentage has held pretty steady from past history to now.

Arvinder Ubhi: Perfect. So I think what we’re looking at here is the importance of planning early, and working with a law firm that has the data sets behind it to understand these trends and adapt how it files cases, the types of evidence it uses, and the depth of that evidence. For the NIW, where you’ve got that 50/50 shot, it’s an expensive process to go through, and you really want to be on the right side of that coin flip. With the EB-1A, it’s really about putting in the work to get a solid case together. So again, make sure you plan ahead, look at those trends, and speak with your immigration attorney to understand your chances of success based on current trends and the case in front of them.

Case Study: An EB-1A Approved After an RFE

Nadia Langworthy: So Arvinder led us into a great segue as to why it’s so important to strategize and work closely with your immigration attorney, because not every case is one size fits all. There are going to be more unique cases, with clients at the center who are more nontraditional filers.

So I’ll take you through this EB-1A case. On paper, it looks like exactly the type of case that, quote unquote, shouldn’t work. This person had none of the traditional evidence we typically see, like a publication or citation history. In this particular case, we were retained only for the RFE response, after the original petition had been filed by another law firm.

The petitioner was a site reliability engineer at a major tech company. The infrastructure work they performed served billions of users and had significant real-world impact. But like I said, they didn’t have peer-reviewed publications, a citation history, or really any of the conventional academic markers people might be used to seeing.

USCIS issued a pretty comprehensive RFE challenging five of the six claimed criteria. The officer dismissed conference committee service as inherent to a managerial position. They questioned whether the professional association membership actually met the outstanding achievement standard. They also challenged the salary documentation, and even raised procedural objections about contact information in the recommendation letters. So they pulled out all the stops.

What we did for the RFE response was rebuild the record systematically. We fixed the procedural issues first, and then we attacked things criterion by criterion. For the judging criterion, we compiled invitation and confirmation emails across six conferences to establish documented participation independent of any managerial role, which cuts against the officer’s argument there. For the critical role criterion, we obtained letters from four senior executives describing specific engineering contributions this client had made, including a large infrastructure project that ended up reducing outages by 50% and increasing deployment cadence from weekly to daily. And in response to the officer’s attack on high salary, we backed up that salary claim with additional information, like W-2s and comparative wage data.

The happy result is that this case was approved. And this isn’t unique to EB-1As. Nontraditional petitioners also apply for the NIW, and I’ll get into a case study for that as well.

Arvinder Ubhi: Just before we jump into the next slide: this is a unique scenario. Normally, when a Request for Evidence is that comprehensive, it can be really difficult to correct the underlying case. So when we’re working with clients, I think it’s really critical to think about the potential for an RFE at the time of filing, and to try to second-guess how an officer is going to be thinking. Because even if you put forward a phenomenal legal brief in response to the RFE, some officers are just set on sticking with their initial decision. We got a great outcome on this case, but again, it goes back to forward planning: speaking with your attorneys early and often, and having the correct data, the correct evidence, and an understanding of the prevailing trends at the time of filing. Okay, that’s absolutely perfect. Let’s look at a case study for an NIW. Over to you.

Case Study: An NIW Approved After an RFE

Nadia Langworthy: Sure thing. Thank you. Like I was saying, this happens in the NIW area as well. We have those non-researcher profiles, and just because you don’t have a traditional academic background with research publications and citations does not mean you can’t find success on this path.

A little bit about this filer: they were the owner of a data solutions company, and they built privacy-focused analytics platforms for e-commerce clients. They had an advanced degree in computer science and very strong technical credentials, but again, no publications and no citation history.

This case did receive an RFE from USCIS, which challenged all three Dhanasar prongs. USCIS characterized the filer’s work as equivalent to that of a classroom teacher, meaning they thought the filer was only serving individual clients, and that the endeavor did not rise to the level of national importance and there was no national interest in it. USCIS also challenged whether the beneficiary had demonstrated any field-wide influence.

The strategy for an RFE like this was reframing the first prong, the national importance argument. For this case in particular, we reframed it around federal privacy frameworks. Information about compliance and the emerging US data privacy regulatory landscape was included in the RFE response to push back against that particular challenge. We also shifted the narrative from the client services the officer was focused on to privacy infrastructure with major regulatory significance. So we’re shifting the impact from what the RFE claimed it was to what we were actually showing in the RFE response.

We introduced new evidence that wasn’t in the original petition, and that was very helpful in further demonstrating that field-wide reach beyond paying clients existed for this petitioner. And for the second prong challenge, we neutralized it by showing that active user adoption in this client’s field translated to documented field influence.

So again, the outcome here: we received an approval following the RFE response. This is another example of the non-research, nonacademic profile that USCIS often defaults to dismissing. With the right approach to the RFE response, the right reframing, and the right strategy behind a case, it’s certainly possible to get the outcome you want.

Myth or Fact

Arvinder Ubhi: Many thanks. Okay, let’s move on to some myths and facts. There are so many rumors that bounce around in immigration forums and on social media. We all get phone calls every single week where we hear these rumors, so I think it’s a good opportunity to dispel some of them. Obviously these are current as of October 1st, when we’re recording this. Immigration, particularly now, is very fluid and changing at a rapid pace, so these may change if you’re watching after October 1st. But as of today, this is where we’re at.

“You can’t start a company on a student or work visa.”

Arvinder Ubhi: In terms of starting a company on a student or a work visa, where do we land on that?

Julie P. Levey: I can take this one. Total myth. It’s common for founders to use an O-1A, an E-2, a majority-owner H-1B, or International Entrepreneur Parole to start a company. We see it all the time. So that first one is a complete falsehood.

“Startups now pay $100,000 for every H-1B.”

Arvinder Ubhi: All right, I’m going to tackle this one. “Startups now pay $100,000 for every H-1B.” Well, we know that’s a myth. The fee was blocked, and it never applied to individuals in the US who were changing status. That means if you were on a student visa as an F-1, you went through the lottery process, and you asked USCIS to change your status to H-1B without leaving the US, then, ironically enough, today, October 1st, is the first day those individuals who went through the H-1B cap in March of 2026 can work in the US in H-1B status. For a lot of those individuals who applied for an in-country change of status, their status automatically changed over today, and they’re now in H-1B status. They were exempt. They weren’t subject to the $100,000 fee. And even now, it has been blocked by a court decision.

“If you lose the lottery, you have to leave the US.”

Arvinder Ubhi: Next myth or fact: if you lose the lottery, you have to leave the US. Natalie, do you want to take that one?

Natalie Puletti: Sure. This isn’t necessarily true, especially depending on your immigration situation at the time you lost the lottery. Certain H-1Bs are actually cap exempt, so depending on your employer, a nonprofit for example, you might be able to qualify for an H-1B that way. Of course, there’s the O-1 and the treaty visas. And if you are on STEM OPT, you have a second bite at the apple, so to speak, for the lottery the second time around.

“Some green cards don’t need an employer at all.”

Arvinder Ubhi: Okay, I’m going to stick with you for the next myth or fact. Some green cards don’t need an employer at all.

Natalie Puletti: This is a fact, and it’s one of the perks of the EB-2 NIW and the EB-1A. They are self-petitions. Something we get asked often is, “What happens if I’m working for one employer on projects in this field, and then a few years later I want to pivot and work at a different employer, or on a different project?” The answer is you can do that, as long as you continue to work in what’s called the same or similar field, and generally toward your proposed endeavor.

In other words, what we claim for you in your NIW or EB-1A, what you are intending to work on, needs to stay within the same realm. You can start new degree programs. You can work in industry or not. You can even change fields or employers, as long as you’re keeping close to what we originally put in that filing. So, for example, if you are a software engineer in artificial intelligence, and then you decide it’s time to become a cardiologist, that’s probably not going to work. But if you’re in software engineering and artificial intelligence, and then you move over to something like data science, you could probably make the case.

Arvinder Ubhi: Okay, perfect. And for anyone who thought that was a myth, you clearly weren’t listening about 15 minutes ago. So thanks for going through that.

“You need a Nobel Prize to get an O-1.”

Arvinder Ubhi: The final one. Nadia, over to you. Do you need a Nobel Prize to get an O-1?

Nadia Langworthy: Absolutely not. If that were true, very few people would have O-1s. I’m sure a lot of people watching this recording know someone on an O-1, or have heard about it. You only need to meet three of eight criteria to get an O-1, and it’s often achievable through claiming publications, judging the work of others, and demonstrating that you’ve made original contributions of major significance. Those are just three of the eight we normally gravitate toward for clients, but it’s highly likely that other criteria will be met as well. So no, you do not need a Nobel Prize for an O-1.

Three Journeys From Campus to Company

Arvinder Ubhi: Okay. Now we’re going to shift gears a little and talk about three different journeys, for individuals who went from campus to company. Natalie, why don’t you walk us through Priya, Mateo, and Lin’s journeys?

Natalie Puletti: Okay. We’ve obviously thrown a lot of immigration law terms at you, so let’s break it down into practical examples. For each one, I want to talk about the decision point, and where a different choice might have changed the outcome.

Priya: F-1 Student to H-1B to PERM

Natalie Puletti: Priya is an F-1 student. She goes through her OPT at a Series B startup, later extends to STEM OPT, and wins the lottery on her second try. She gets an H-1B with the cap-gap, and now she’s in the PERM process for an EB-2.

For Priya, the decision point was when her employer started the PERM. If they had waited until year five of her H-1B, she’d be under real time pressure. But because they started early, her place in line is locked. And once her I-140 is approved, that place goes with her, even if she changes jobs.

Here’s a “what if.” If she had been born in India, this exact same path could mean a wait of more than a decade. That’s when it’s really worth asking whether her record could support an EB-1 or an NIW, which, as you saw on the Visa Bulletin, may move a little faster.

Mateo: PhD Researcher to Founder on an O-1A

Natalie Puletti: Mateo is an F-1 PhD researcher on OPT at an AI lab. He co-founds a company, raises a seed round, and then applies for an O-1A through his own startup. Eventually he moves on to the EB-2 NIW for his green card.

For Mateo, the decision point was not depending on the lottery once he became a founder, because the O-1A lets his own company sponsor him. The smart part is that the evidence he used for his O-1, things like judging, press, and original contributions to the field, can all be reused and framed toward the NIW as well. In a situation like this, we’d probably frame the case around what his AI work does for the country, not just around running his startup. That’s the framing example I gave a few minutes ago, in action.

Lin: The Employer Side

Natalie Puletti: And lastly, we have Lin. A TN status holder who is a Canadian engineer, STEM OPT grads, H-1B registrations at level 3, an H-1B transfer with no lottery, and then a PERM for a key hire. Lin is an example of the employer side.

The decision point here is matching each hire to the right option, and keeping the company audit ready. A TN works well for a Canadian engineer, but a TN doesn’t always mix well with a green card plan. If the engineer becomes a long-term hire, Lin may want to move them to an H-1B before starting the green card. Registering at level 3, meaning the H-1B wage category, improves the odds in the new lottery, but it’s also a real salary commitment, so companies have to budget for it. And things like STEM OPT site visits and H-1B public access files are where compliance problems might show up. So the recommendation there is always to keep paperwork current.

These are three patterns where the right moves were made a step ahead, before anyone was forced to make them. Every case turns on its own facts, so your sequence may look different, and that’s exactly what strategy sessions are for.

Upgrading Your Green Card Strategy Over Time

Arvinder Ubhi: Perfect. Let’s take Priya and Mateo. Let’s say they’re going through that process, and they may be subject to a bit of a backlog, as we discussed. If they continue to enhance their profiles, how could they adjust their long-term strategy? Could they move from, say, the EB-2 PERM or the EB-2 NIW and file another green card after that?

Natalie Puletti: Yes, absolutely. There’s nothing restricting you from filing a second I-140, and like I said before, there’s nothing restricting you from having I-140s run concurrently either. So as they gain more experience in the field, maybe more press around their startups or their work, they’ve judged hackathons, or they’ve built their reputation in the field, there’s nothing stopping them from trying again with an EB-1A.

Arvinder Ubhi: Perfect. So let’s put that into practice. Priya: let’s say her country of birth is India. Under the H-1B, she’s got her place in line. She knows she can continue to extend the H-1B with an approved I-140, in three-year increments. So she’s good on the mid-term strategy. Priya’s got her place in line for the green card under the EB-2 PERM category. If she continues to enhance her profile and hits the standard of a solid EB-1A, there’s nothing to prohibit her from filing that and then being able to adjust, maybe at an earlier date, based on her country of birth and the Visa Bulletin.

Natalie Puletti: Yes, that’s exactly what I was thinking. If she has that approved I-140 from, let’s say, the lower-threshold category of the EB-2 NIW, or if her PERM works out, then yes, she’d be able to use that earlier priority date in the EB-1 line, which typically runs a little faster for individuals from India and China than EB-2 does.

Arvinder Ubhi: Okay, perfect. And I guess the same would go for Mateo. We know that under the O-1 there isn’t a definitive limit on how long or how many times you can renew, so he could continue to renew it indefinitely. He’s maintaining his underlying nonimmigrant status. He has the EB-2 National Interest Waiver pending, so he’s got his place in line for the green card. And again, if his profile continues to get stronger and he thinks, “Now maybe I have a strong EB-1A case,” he could also file an EB-1A and pick up maybe an earlier date to adjust status as well.

Natalie Puletti: And interestingly, the O-1A criteria closely track the EB-1A criteria. So with a strong O-1A petition, we could reuse a lot of the evidence for the EB-1A petition.

Closing

Arvinder Ubhi: Okay. Thank you for that. I want to thank everyone for their time watching this. We really appreciate you taking the time out. If you would like to schedule some time with one of our amazing attorneys, please feel free to scan the QR code or book through the Ellis Porter website. We’re always happy to share our time with you, and to give you very frank, candid responses. We can talk to you about the various strategies and immigration options you may have, and start to plot out a timeline for you. We can also talk about budgets. We do everything on a flat fee, so there are really no surprises. Obviously, when we’re talking about government filing fees, they’re only current as of a particular date.

And the way we like to operate as a firm is to make sure you have a dedicated attorney. There’s no point spending half an hour talking with somebody, and then having to repeat everything to a new attorney. So we like you to have a dedicated attorney at Ellis Porter, and we’d love to be that attorney for you. Thank you again for your time, and we look forward to hearing from you.

This video was recorded on October 1, 2026. Immigration rules, fees, and Visa Bulletin dates change frequently, and several issues discussed here are in active litigation. This content is general information, not legal advice. Talk to an Ellis Porter attorney about your specific situation.

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