This is another installment of “Dear Sophie,” the advice section dedicated to addressing immigration questions related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, states, “Your inquiries are essential for disseminating knowledge that empowers individuals globally to overcome geographical limitations and achieve their aspirations.” She adds, “Whether you are involved in human resources, are a company founder, or are seeking employment in Silicon Valley, I welcome the opportunity to respond to your questions in my upcoming column.”

Subscribers to Extra Crunch gain access to weekly “Dear Sophie” columns; utilize the promo code ALCORN to acquire a one- or two-year subscription at a 50% discount.

Dear Sophie:

Is there a visa specifically designed for startups in the United States? If not, what visa options are most suitable for startup founders?

Furthermore, if my friend is a Dreamer currently residing in the U.S. without documentation but desires to establish a startup, is this a possibility?

—Cheerful in Chile

Hello Cheerful!

There is certainly reason for optimism regarding your friend’s situation, as DACA has been reinstated! DACA, or “Deferred Action for Childhood Arrivals,” grants work authorization to individuals brought to the U.S. during their childhood. Key criteria for potential eligibility include being under 31 years of age as of June 15, 2012; having arrived in the U.S. before turning 16; and having continuously resided in the U.S. since June 15, 2007. USCIS has announced it is now processing initial DACA applications, renewals, and advance parole requests for travel, with approvals granted in two-year intervals. This development is encouraging for many who consider the U.S. their home, having received their education here or served in the military, and who wish to continue contributing to the technological landscape and the broader economy.

Beyond DACA, what other avenues exist for founders looking to relocate to the U.S. in 2021?

To clarify: The U.S. currently lacks a dedicated startup visa (additional details can be found in my opinion piece published in the Times of San Diego). The National Foundation for American Policy estimates that the implementation of a startup visa in 2016 would have generated between 1 million and 3.2 million jobs over a decade. I am personally committed to supporting the creation of a U.S. Startup Visa or potentially the revival of International Entrepreneur Parole as we move forward under the Biden/Harris administration.

However, viable solutions, insightful information, and innovative strategies are available, some of which I can outline here. Please refer to 7 of the Most Startup-Friendly Visas Explained. As we emerged from the COVID-19 pandemic in 2021, these were the most frequently utilized visas and green cards for many founders. Given the complexities of immigration law, individuals often seek my guidance to identify alternative strategies that align with their specific, long-term objectives.

B-1 visa for business visitors

The B-1 visa is a temporary, nonimmigrant visa designed to allow businesspeople to investigate opportunities within the U.S. market. With a B-1 visa, a company founder or entrepreneur is permitted to travel to the U.S. for business purposes, but is not authorized to hold employment. This means engaging in any compensated or volunteer work for a U.S.-based organization during your visit is prohibited. Nevertheless, certain activities are permissible for founders, including discussions with potential investors, contract negotiations, the recruitment of personnel through interviews, and the process of setting up a U.S. office. A B-1 visa generally permits a stay of up to one year – initially for six months, with the possibility of a six-month extension. To simplify future travel, it is generally advisable to limit your time spent in the U.S. while operating under B-1 status to less than six months.

Entrepreneurs who are nationals of specific countries, such as Chile, may be eligible for the ESTA (Electronic System for Travel Authorization) program. This visa waiver allows travel to the U.S. for business activities for periods of 90 days or less without the need to apply for a visa beforehand. Once in the United States, ESTA authorizations generally cannot be prolonged or converted into a different visa type.

L-1A visa for intracompany transferee managers and executives

The L-1A visa represents a valuable nonimmigrant option for a business owner who has already established a company internationally and is looking to extend operations into the United States. We anticipate that in-person visa interviews for L visas will generally resume in 2021.

To qualify for this visa, a business owner must have been employed by the international company for a minimum of one year continuously during the three years prior to applying. The L-1A visa necessitates a company sponsor. Typically, to sponsor a business owner for an L-1A visa, the company must demonstrate:

• That it currently operates, or will soon operate, in both the U.S. and another country.
• That it offers products or services within the U.S. market.
• That it maintains a physical office location in the U.S., or that the applicant will establish one.
• That the U.S. office will provide support to the applicant within one year of the United States Citizenship and Immigration Services (USCIS) approving the L-1A petition.

A spouse of an L-1A visa recipient is permitted to apply for employment authorization. Furthermore, the L-1A visa can potentially lead to permanent residency through the EB-1C immigrant visa.

E-2 visa for treaty investors

The E-2 visa is a type of nonimmigrant visa. It's designed for entrepreneurs who are nationals of countries with existing trade agreements with the United States and who intend to make a significant investment in either establishing a new business within the U.S. or opening a U.S. office for their existing company. Individuals from Chile are among those eligible to petition for an E-2 visa, and Chilean citizenship is not dependent on birthplace.

To be eligible for the E-2 visa, more than half of the ownership in the U.S. business must be held by citizens of the treaty country. Additionally, the business needs to be able to produce sufficient revenue to support the founder and their family, either immediately or within a five-year timeframe. Employees of the company sponsoring the visa, who are also citizens of the treaty country, may also qualify for an E-2 visa if their role is considered crucial to the organization.

A significant advantage of the E-2 visa is the opportunity for the visa holder’s spouse to obtain employment authorization. The E-2 visa can be renewed indefinitely, provided the holder continues to meet the requirements. While the E-2 visa does not directly lead to permanent residency, the EB-2 National Interest Waiver (NIW) may be a suitable option for long-term immigration planning in many cases (see below).

H-1B visa for specialty occupations

In the past, U.S. startups encountered significant initial expenses and uncertainties when supporting founders applying for an H-1B visa through the yearly lottery. However, this situation improved with the recent implementation of a new online registration system by USCIS. Currently, sponsoring companies are only required to submit a $10 registration fee for each candidate entering the digital H-1B lottery. A complete H-1B petition is only necessary for employers whose candidates are chosen. Before this change, companies were obligated to create a full H-1B petition – a resource-intensive and expensive process – simply for a candidate to be considered in the lottery. This represents a considerable improvement for companies in their early stages of development.

The H-1B visa is a suitable option for a startup founder who has either established or is currently building a U.S.-based startup and does not yet possess the qualifications needed for an O-1A visa or an EB-1A or EB-2 NIW green card, which will be discussed further. Furthermore, the H-1B visa allows a startup founder to extend their status for more than six years while a green card application is pending.

Securing H-1B sponsorship for a founder can be complex for a startup, whether it's the initial sponsorship or a transfer from another employer. To be eligible for an H-1B visa, founders must organize the startup to demonstrate a genuine employer-employee relationship with the company.

O-1A extraordinary ability visa

Many startup leaders demonstrate exceptional skills or have attained notable accomplishments throughout their careers, potentially making them eligible for the O-1A nonimmigrant visa. This visa is particularly beneficial for founders operating a U.S.-based startup, as it necessitates an employer sponsor, and is a viable option for those requiring a visa approval within a shorter timeframe. Furthermore, the criteria for obtaining an O-1A visa are generally less demanding than those for the EB-1A extraordinary ability green card, which is detailed further below, making it suitable for founders who need to secure work authorization quickly or do not meet the qualifications for an EB-1A green card.

I offer comprehensive guidance on meeting the O-1A qualifications and independently filing for a green card through my Extraordinary Ability Bootcamp, which is open to all interested individuals. To provide further information, we will be conducting a webinar on Wednesday, December 16 at 11 a.m. PST.  You can register for the webinar here!

EB-1A extraordinary ability green card

During this webinar, we will also cover the EB-1A green card, an excellent option for founders who have demonstrated significant national or international recognition in their area of expertise and desire to establish permanent residency in the United States. Startup founders are eligible to submit an EB-1A petition independently, or their U.S.-based company can sponsor them without requiring the founder to relinquish control, unlike with an H-1B visa. Furthermore, sponsoring employers are not required to complete the often-expensive and lengthy labor certification process with the U.S. Department of Labor before submitting an EB-1A petition to USCIS.

Meeting the requirements for an EB-1A is demanding, yet many of the entrepreneurs I have consulted with tend to downplay their achievements. Therefore, I suggest consulting with an immigration lawyer to evaluate your qualifications. While applicants originating from India and China may experience a waiting period for EB-1A approval, this timeframe is generally shorter compared to other employment-based green card categories. Additionally, expedited processing is offered for EB-1A petitions.

EB-2 NIW exceptional ability green card

The EB-2 NIW (National Interest Waiver) green card provides similar advantages for company founders and those with employer sponsorship as the EB-1A, but the criteria for qualifying for the EB-2 NIW are comparatively less demanding. A drawback for individuals originating from India and China seeking an EB-2 NIW green card is the potentially extended processing timeframe compared to the EB-1A. Furthermore, unlike the EB-1A option, premium processing is currently unavailable, though there is hope for its introduction in 2021.

I invite you to participate in Bootcamp! I wish you all the best as you work to convert your entrepreneurial concepts into tangible achievements.

Sincerely,

S

Do you have an inquiry? Please submit it here. We maintain the right to modify your submission to enhance clarity and/or conserve space. The details presented in “Dear Sophie” are for informational purposes only and should not be considered legal counsel. For further details regarding the scope of “Dear Sophie,” please review our complete disclaimer available here. You may reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, can be found on all popular podcasting services. She is currently accepting applications for potential guests!