B-1 Visa and COVID-19: Options to Stay in the US

Welcome to another installment of “Dear Sophie,” a column dedicated to answering your immigration questions related to the technology sector.

“Your inquiries are incredibly important for disseminating knowledge and empowering individuals globally to overcome geographical limitations and achieve their aspirations,” states Sophie Alcorn, a Silicon Valley-based immigration lawyer. “Whether you work in human resources, are a company founder, or are seeking employment in Silicon Valley, I welcome your questions for consideration in my next column.”

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

Dear Sophie:

I am currently present in the United States under a business visitor visa. I arrived in early March, shortly before the onset of the COVID-19 pandemic, with the intention of evaluating the U.S. market for the expansion of the startup my co-founders and I established in Bolivia several years ago.

My initial plan was for a brief stay of a couple of months, but unforeseen circumstances have extended my time here. Now, my company is presented with genuine opportunities for growth. What steps can I take to remain in the U.S. and begin working?

— Satisfied in San Jose

Hello, Satisfied!

I recognize the value of the employment opportunities your expansion will generate within the U.S., and I support your desire to continue developing your startup here. The U.S. economy thrives on the innovation brought by entrepreneurs like yourself. Given that you are already in the U.S., you may have options to adjust your status without needing to depart.

If your most recent entry with a B-1 visitor visa granted you a stay of six months, you can apply for an extension of that status for an additional six months. Furthermore, there are other avenues we can investigate that would grant you work authorization. For a more comprehensive understanding of these options, as well as additional visa and green card possibilities for startup founders, please refer to my podcast, “What is U.S. Startup Founder Immigration? A Step-By-Step Guide for Beginners.”

Considering that obtaining green cards (immigrant visas) generally takes longer than securing temporary (nonimmigrant) visas, a practical approach would be to pursue another temporary visa—often referred to as a “visa”—rather than immediately applying for a green card. This will allow you to establish and expand your startup in the U.S. without the necessity of returning to Bolivia.

Before proceeding, it’s important to understand that most visas necessitate an employer sponsor—and frequently, that sponsor must be a U.S.-based entity. Many founders in your situation establish a U.S. parent company, with their existing startup abroad functioning as a subsidiary. I strongly advise consulting with a knowledgeable immigration attorney, who can not only streamline your immigration process but also connect you with a reputable startup lawyer. My recent podcast addresses corporate law considerations for internationally-founded startups. If the immigration status you are pursuing requires an employer, ensuring full legal compliance before submitting your application or petition to USCIS is crucial.

One initial option to explore is the O-1A visa for individuals possessing extraordinary ability. USCIS typically processes O-1A applications within a few weeks to a few months, depending on whether you opt for premium processing. To qualify for the O-1A, you must demonstrate established national or international recognition and a position at the forefront of your field in science, education, business, or athletics. (The O-1B visa is designated for individuals with extraordinary ability in the arts, motion pictures, or television industry.) For further guidance on achieving the necessary accomplishments to qualify, consider our Extraordinary Ability Bootcamp. Use code DEARSOPHIE for a 20% discount on enrollment.

The O-1A visa requires a U.S. employer sponsor, meaning you would need to create a U.S.-based company. If you are attracting investment from U.S. institutional investors, such as venture capital firms, you might discuss with your legal counsel the possibility of structuring the U.S. company as the parent company of your Bolivian startup. This U.S. company would then sponsor you for the O-1A visa. Your spouse and children could accompany you under an O-3 dependent visa; however, your spouse would not be eligible for work authorization.

Another potential route is the L-1A visa for intracompany transferee managers and executives, available if you and your co-founders established your startup in Bolivia over a year ago and you have been an employee of that startup for at least one year. U.S. Citizenship and Immigration Services (USCIS) generally processes L-1A applications in five weeks to two months. The L-1A visa is well-suited for founders who have already launched a startup abroad, have been actively employed by it for a year or more, and intend to establish a U.S. office for the startup. Your spouse and children may be able to join you in the U.S. under an L-2 dependent visa once U.S. embassies and consulates resume processing these visas.

When applying for the L-1A, USCIS historically seeks evidence of your startup’s establishment in the U.S., such as a physical location or demonstrable traction indicating the business can generate sufficient revenue to support you and its operations within one year of the visa’s approval. If approved, your L-1A status will initially be valid for one year. Upon demonstrating further company growth, you can renew your L-1A status for a maximum duration of seven years, with subsequent renewals potentially granted for two-year periods.

A further advantage of the L-1A status is the pathway it provides toward obtaining a green card. Should you decide to permanently reside in the U.S., you can later apply for an EB-1C green card for multinational managers and executives through company sponsorship.

A third option is the E-2 visa for treaty investors, typically adjudicated by USCIS in two to four months, and also eligible for premium processing. The E-2 visa is accessible to citizens of countries with investment treaties with the U.S. who are making a substantial investment—generally at least $200,000—to establish a U.S. office or startup. Citizens of Bolivia, among many other nations, are eligible for the E-2 visa.

To qualify for the E-2 visa, at least 50% of the startup’s ownership must be held by citizens of the treaty country—in this case, Bolivian citizens—and the startup must generate enough income to support you and your family in the U.S., or be projected to do so within five years. Additionally, any co-founders or employees from Bolivia are also eligible for an E-2 visa. If a $200,000 cash investment is not feasible, the transfer of valuable intellectual property or other assets may be considered as part of your investment. Key benefits of the E-2 visa include work authorization for the visa holder’s spouse and the possibility of unlimited renewals.

Finally, your company might be eligible for a “cap-exempt H-1B”—an H-1B visa available year-round, without a lottery, if it meets specific regulatory criteria. Establishing a strong employer-employee relationship is essential for this option, and there are organizations that support startups in creating these opportunities.

I look forward to learning which path best suits your needs!

Sincerely,

Sophie

Do you have a question? Submit it here. We reserve the right to edit submissions for clarity and/or brevity. The information provided in “Dear Sophie” is for general informational purposes only and does not constitute legal advice. For more information regarding the limitations of “Dear Sophie,” please review our complete disclaimer here. You can reach Sophie directly at Alcorn Immigration Law.

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