Behind the News Story: Business Insider: "Instagram Almost Lost One of its Cofounders Because He Couldn't Get a Work Visa"

by Carolyn Szaiff Alvarez

Instagram is one of the world’s most popular social media networks, known for its easy-to-use interface for sharing photographs. Indeed, in December 2014, the company was valued at $35 billion, according to Citigroup analysts. Back in April 2015, Business Insider published an article claiming that the company “almost lost one of its cofounders because he couldn’t get a work visa.” A native of Brazil, Mike Krieger is a co-founder and the chief technology officer at Instagram. According to the article, Mr. Krieger had difficulty transferring his H-1B visa from his previous employer, Meebo, to Instagram in 2010. The process is said to have taken Mr. Krieger over three months—longer than it took to develop the first version of Instagram! Mr. Krieger said he almost was not able to work at Instagram because of the delay, and the article goes onto conflate Mr. Krieger’s visa delay with the annual H-1B cap and lottery.  

While this makes for a compelling news story, for those who have any understanding of the H-1B process it doesn’t seem wholly accurate. In this post, we go behind the scenes to discuss the issues surrounding the H-1B and why, in this case, perhaps the immigration system might not have been to blame. First, we should note that we were not involved with Mr. Krieger’s H-1B case in any way nor are we aware of any of the specifics of his immigration background; moreover, we are not aware of the immigration attorney or firm who handled this case.   

As background, the H-1B is a nonimmigrant visa for people who will be employed temporarily in a “specialty occupation.” In other words, it is a visa for those who will work in a job that requires a bachelor’s degree (or the equivalent experience) in order to perform the duties of the position offered. These specialty occupations include software engineers, like Mr. Krieger. Unfortunately, there is a limit to how many new H-1B visas are available each year. Generally, only people who have never had an H-1B before or who have spent a year outside the US since their last H-1B are subject to the limit. There are 65,000 new H-1B visas available each year, and an additional 20,000 for individuals who possess an advanced degree earned at a US educational institution. If the number of petitions received by US Citizenship & Immigration Services (USCIS) exceeds the number of available H-1Bs, USCIS conducts a lottery of all cases received within a certain period of days.

Since the cap and lottery apply only to those individuals who have never held H-1B status or who have been outside the US for more than a year after having held H-1B status, it means that renewals, change-of-employer petitions, or extensions of H-1B status are generally not limited by the cap. A transfer of H-1B status, from one employer to another while the employee is in the US, is treated as an extension, and is therefore not subject to the lottery. This should have been the application Instagram filed on Mr. Krieger’s behalf.

Moreover, with H-1B change-of-employer petitions, the beneficiary, in this case Mr. Krieger, is eligible to work for the new company when the petition has been received by USCIS. USCIS states that under the "American Competitiveness Act in the Twenty-First Century (AC-21), an employee currently in H-1B status may begin working for a new employer as soon as the new employer files a Form I-129 petition for the employee” if certain requirements are met including proof of maintenance of previous H status. It is not clear why Mr. Krieger did not pursue this option—he would not have had to wait for approval of the H-1B petition in order to commence working with Instagram. In other words, Mr. Krieger was potentially eligible to work with Instagram as soon as he received the receipt notice for his H-1B transfer petition, which could theoretically be accomplished in two to three weeks. So why three months?

Was the reason for Mr. Krieger’s three-month wait for his visa transfer due to processing delays? For some reason was he waiting for approval of the H-1B petition filed on his behalf? Although we do not have access to information about processing times in 2010, as an example, the current backlog at USCIS’s California Service Center (CSC) for H-1B extensions of stay (which is likely what Mr. Krieger applied for) is more than five months under regular processing. It would therefore not be surprising if these visas had a three-month backlog when Mr. Krieger submitted his petition to transfer his H-1B status to Instagram.

But even if for some reason—which is unlikely since it was an H-1B change-of-employer and applicants can begin work upon receipt—he was waiting for approval, his petition would have been eligible for premium processing, which has been available as an option for H-1B petitions since July 30, 2001. Simply put, premium processing guarantees fifteen-calendar day processing of petitions for an additional $1,225 on top of normal filing fees. A case can be upgraded to premium processing even after it has been filed with regular processing. Unfortunately, there have recently been periods where premium processing was not available for H-1B extension of stay petitions due to administrative decisions by USCIS. That said, if premium processing was an option when Mr. Krieger’s H-1B transfer was filed, he could have arguably avoided the three-month wait.

Another possibility, is that even with premium processing there may have been a request for additional evidence (RFE) which can delay the final adjudication of the case. It can take time to understand what Immigration is asking and to prepare an adequate response. But as mentioned previously, Mr. Krieger could have started working upon filing so the RFE doesn’t quite explain it. Another thought was that perhaps Mr. Krieger was not in valid immigration status at the time of filing which could mean that he would not have benefitted from the portability provision. In other words, by being out of status he would not have been able to start working upon the filing of the new petition. Of course, this would not have been the fault of Immigration.

While USCIS is certainly responsible for many delays in processing, and the H-1B lottery system makes the process of applying for a new visa completely random and unpredictable, in the case of Mr. Krieger, blaming the three-month delay on Immigration may not exactly be correct.  We certainly concur with Mr. Krieger’s frustration about the process but in reality a three-month delay, merited or not, for a visa application is hardly a delay at all when compared with Immigration wait times for other visa types. For example, an H-1B petition, once selected in the lottery, can take over six months to adjudicate in regular processing, almost a year if the case receives an RFE. An O-1, which by regulation is supposed to take fourteen days, is currently taking over four months in regular processing. Are these delays right? Absolutely not, but they are an aspect of a broken immigration system.

Since having his H-1B visa transferred to Instagram, Mr. Krieger has also been outspoken about his desire for the government to make changes to US immigration policy. While it likely did not impact his own case because he first obtained his H-1B status before demand for the visa was as high as it is today, he is not a fan of the lottery system used for H-1B cap-subject petitions. Mr. Krieger has been quoted saying, “Lotterying it out year after year, basing it on timing—as a software engineer, it feels wrong. It’s like applying a random function to your immigration.”

Of course, Mr. Krieger recognizes that skilled immigrants like himself are important to the United States. He has said that the US economy “really benefits from letting the right people in.” We couldn’t agree more. In the end, our office is thrilled that Mr. Krieger was able to transfer his H-1B status so that he could work at Instagram—it’s no secret that we love using the app here at the firm!