Living Your Dreams in Silicon Valley: Advice for Aspiring Tech Professionals

Dear Sophie: Pursuing Silicon Valley Dreams

This is another installment of “Dear Sophie,” a column dedicated to answering immigration questions relevant to the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these questions. She believes they contribute significantly to the dissemination of knowledge, empowering individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in people operations, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome. Sophie is eager to address them in her next column.

TechCrunch+ subscribers gain access to weekly “Dear Sophie” columns. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie,

For several years, I have been attempting to secure an H-1B visa and relocate to the United States. Ultimately, I accepted a senior software engineer role with a company located in Canada.

My ultimate goal is to immigrate to Silicon Valley and launch my own company. Do you have any guidance?

— Eager Entrepreneur

Dear Eager,

Thank you for sharing your journey. In recognition of National Immigrants Day, my podcast featured a tribute to the immigrants who contribute to the United States, pursuing their ambitions and enriching the nation in countless ways.

Studies consistently demonstrate that immigrants – especially entrepreneurial immigrants like yourself, exhibiting resilience and determination – are instrumental in fostering innovation, generating employment opportunities, and driving economic expansion within the United States.

Immigrant Contributions to the US Economy

A 2020 report from the New American Economy revealed that 44% of Fortune 500 companies, encompassing both public and private organizations, were established by immigrants or their children.

These companies collectively generated $6.2 trillion in revenue during the 2020 fiscal year. This figure surpasses the gross domestic product of numerous countries, including Japan, Germany, and the United Kingdom.

While U.S. immigration policies can present challenges for those seeking to realize their American dream, it remains achievable. Most U.S. work visas and statuses necessitate employer sponsorship, which could potentially include your own startup.

I strongly advise consulting with an immigration attorney. They can assist in developing a tailored immigration strategy aligned with your specific objectives and desired timeframe.

Below are several options to discuss with your legal counsel.

L-1 Visa: Facilitating Intracompany Transfers

The L-1 visa is designed for employees being relocated to the United States by their current employer from an international location. Provided an individual maintains employment with their Canadian-based company for a minimum of one year, and the employer is prepared to provide sponsorship, a transfer to a U.S. office or operation becomes possible.

This transfer can also involve establishing a new office within the U.S. for the employer. Two primary visa classifications facilitate this: the L-1A visa, intended for managers and executives, and the L-1B visa, designated for employees possessing specialized knowledge.

Startup Ventures and the L-1A Visa

A Canadian startup, after operating for at least one year, may also qualify to sponsor an employee for an L-1A visa. This allows the startup to establish a presence and expand operations into the United States.

Pathways to Permanent Residency

The L-1A visa provides a potential route towards obtaining a green card. If a desire for permanent U.S. residency exists, the employer can file an EB-1C green card petition on behalf of the employee.

This petition is contingent upon the U.S. entity having been actively conducting business for a minimum of one year.

Key Visa Distinctions

• L-1A Visa: Specifically for intracompany managers and executives.
• L-1B Visa: Designed for intracompany specialized knowledge workers.
• EB-1C Green Card: A pathway to permanent residency for multinational managers and executives.

International Entrepreneur Parole Program

Individuals who launch a new business, formally establish it within the United States, and maintain ownership of at least 10% of the company may be eligible for International Entrepreneur Parole (IEP).

Furthermore, applicants must demonstrate a capacity for success, typically by securing a minimum of $264,147 in funding from angel investors, venture capitalists, or other sources within 18 months following incorporation.

Benefits of IEP

Approval for IEP grants qualifying entrepreneurs the opportunity to remain in the U.S. for up to five years.

This extended stay is intended to facilitate the growth and scaling of their startup venture.

Detailed information regarding the specific eligibility criteria and the application procedure for obtaining entrepreneur parole status can be found in a prior article in the "Dear Sophie" series.

For guidance on establishing a company within the U.S. legal framework, a discussion with Lindsey Mignano, a founding partner at the corporate law firm Smith Shapourian Mignano, is recommended.

• Funding Requirement: At least $264,147.
• Ownership: Minimum 10% stake in the company.
• Timeframe: Funding must be secured within 18 months of incorporation.

The International Entrepreneur Parole program provides a pathway for foreign-born entrepreneurs to build and expand their businesses within the United States.

E-1 and E-2 Visas: Options for Treaty Countries

The E-1 visa, designed for treaty traders, and the E-2 visa, intended for treaty investors, present viable pathways for entrepreneurs and skilled professionals originating from nations with existing commerce and navigation treaties with the United States.

Eligibility for these visas is contingent upon a country’s inclusion on the U.S. Department of State’s list of treaty nations. This list specifies which countries qualify for the E-1 visa, the E-2 visa, or both.

Currently, neither China nor India have treaty agreements enabling their citizens to apply for either the E-1 or E-2 visas.

Citizens of Canada, however, benefit from treaty status, making them eligible to pursue both the E-1 and E-2 visa options.

Understanding the E-1 Visa

The E-1 visa facilitates substantial trade between the U.S. and the treaty country. Applicants must demonstrate that their trade is substantial in relation to the overall national economy.

This visa requires the applicant to be a national of a treaty country and to engage in trade that is principally between the U.S. and their country of nationality.

Exploring the E-2 Visa

The E-2 visa is geared towards individuals investing a substantial amount of capital in a U.S. business. The investment must be at risk and actively managed by the investor.

To qualify, applicants must come from a treaty country and demonstrate a significant financial investment in a bona fide U.S. enterprise.

• Investment Amount: While there's no fixed minimum, the investment must be substantial in proportion to the total cost of the business.
• Active Management: The investor must be actively involved in the management of the business.

Both the E-1 and E-2 visas are non-immigrant visas, meaning they do not automatically lead to permanent residency. However, they can serve as stepping stones towards other visa options.

Exploring the H-1B Visa Option

Technically, there are no restrictions on the number of H-1B employers an individual can have, nor are there limitations on the total hours worked across these H-1B positions. A common pathway involves securing employment with a U.S. company willing to sponsor your H-1B visa, a process that often necessitates participation in the annual random lottery.

It is possible to maintain a stable H-1B position while simultaneously having your own startup pursue H-1B sponsorship for you. Alternatively, obtaining a cap-exempt H-1B – one that bypasses the annual lottery – through a nonprofit organization like the Open Avenues Foundation (OAF) could be considered, alongside your startup’s concurrent H-1B sponsorship efforts. Our firm has assisted numerous companies in nominating their personnel for OAF fellowships.

Understanding Employer-Employee Relationship

A crucial aspect of the H-1B visa is the requirement of a genuine employer-employee relationship between your startup and yourself. This necessitates that someone within your startup, such as a co-founder or a member of the board of directors, possesses the authority to oversee your work, evaluate your performance, and, if necessary, terminate your employment, among other responsibilities.

Further details regarding immigration pathways suitable for launching a startup can be found in a previous “Dear Sophie” article. This resource delves into options like the IEP, E-2 visa, H-1B, and other relevant visas and green cards.

Best wishes as you pursue your entrepreneurial aspirations and build the life you envision in Silicon Valley!

—Sophie

Do you have a question for Sophie? Submit it here. We maintain the right to edit submissions for clarity and brevity.

Please note that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a comprehensive understanding of the limitations of “Dear Sophie,” please review our complete disclaimer. Direct inquiries can be addressed to Sophie at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is accessible on all leading podcast platforms. She is currently accepting applications from potential guests!