Starting Your Own Business: Options & Ideas

Navigating Immigration Options for Entrepreneurial Pursuits

This is another installment of “Dear Sophie,” a dedicated advice column focused on addressing immigration questions relevant to those working within the technology sector.

Sophie Alcorn, a Silicon Valley-based immigration lawyer, emphasizes the importance of these inquiries. She states that these questions are instrumental in disseminating knowledge, empowering individuals globally to transcend geographical limitations and achieve their aspirations.

Access to weekly “Dear Sophie” columns is available to Extra Crunch subscribers. A 50% discount is offered on one- or two-year subscriptions when using the promo code ALCORN.

Dear Sophie,

I have been employed in the U.S. under an H-1B visa for almost two years. Despite my gratitude for being selected in the H-1B lottery and securing employment, I am experiencing dissatisfaction and frustration with my current position.

My ambition is to launch my own venture and operate independently within the United States. Could you outline any immigration pathways that would facilitate this transition?

— Seeking Satisfaction

Dear Seeking,

According to Edward Gorbis, founder of Career Meets World and a performance coach, feelings of job dissatisfaction and frustration are common among H-1B visa holders. He specializes in assisting immigrants and first-generation professionals in discovering career fulfillment and overall well-being.

I recently discussed this topic with him on my podcast, “Immigration Law For Tech Startups.” Gorbis explains that after achieving a degree of stability, immigrants often begin to contemplate their personal values and core identity.

He works with individuals to enhance their self-awareness, understand cognitive processes, and then reshape their thinking patterns to foster success.

Gorbis suggests that visualizing the overcoming of obstacles is the initial step toward pursuing fulfilling work. Therefore, several options exist to help you envision a path toward realizing your entrepreneurial dreams.

Potential Immigration Pathways

Here are some potential avenues to explore:

• E-2 Treaty Investor Visa: This visa is available to nationals of treaty countries who are investing a substantial amount of capital in a U.S. business.
• EB-5 Immigrant Investor Program: This program allows individuals to obtain a green card by investing a significant amount of capital in a U.S. enterprise.
• L-1A Intracompany Transferee Visa: If you have worked for a qualifying organization abroad for at least one year in the preceding three years, you may be eligible for an L-1A visa to establish a new office in the U.S.
• H-1B Transfer & Potential Green Card Sponsorship: While currently on an H-1B, exploring opportunities with companies that may sponsor you for a green card is a viable strategy.

Important Note: Each of these options has specific requirements and complexities. Consulting with an experienced immigration attorney is crucial to determine the best course of action for your individual circumstances.

Successfully transitioning from an H-1B employee to an independent entrepreneur requires careful planning and a thorough understanding of the available immigration options. Seeking professional legal guidance is highly recommended.

Secure $250,000 in Funding and Lead as CEO

A promising pathway has emerged for ambitious entrepreneurs: the International Entrepreneur Parole program. This novel U.S. immigration initiative grants a 2.5-year period of authorized stay to individuals in key leadership roles, including CEOs and CTOs.

This program enables qualified individuals to reside within the United States while managing their businesses. Furthermore, spouses are permitted to seek employment, and applicants may be eligible to request a 2.5-year extension of their status.

Eligibility Requirements

What criteria must be met to qualify for this program? Applicants are required to hold at least a 10% ownership stake in a U.S.-based company.

This company could be structured as a Delaware C corporation, and may be registered in states like California.

Demonstrating substantial financial backing is crucial. Ideally, applicants should exhibit proof of at least $250,000 in capital raised from qualified U.S. investors before submitting their application.

However, alternative evidence showcasing the company’s high-growth potential and its capacity to generate employment opportunities within the U.S. may also be considered.

• Minimum Ownership: 10% stake in a U.S. company.
• Financial Requirement: $250,000 raised from U.S. investors (preferred), or equivalent evidence of growth potential.
• Company Structure: Often a Delaware C corporation.

The International Entrepreneur Parole program offers a significant opportunity for entrepreneurs to establish and scale their ventures within the United States.

Exploring Employment Opportunities Beyond Your Current H-1B Sponsor

From a technical standpoint, there are no restrictions on the number of H-1B employers one can have, nor are there limitations regarding the quantity of hours worked – or not worked – within an H-1B role. Therefore, considering alternative companies is a viable strategy.

One potential avenue involves obtaining concurrent H-1B visas. This would entail maintaining your existing H-1B employment for financial security while simultaneously establishing your own company. Ideally, this venture should be undertaken with at least one or two additional partners, with the new company acting as your H-1B sponsor.

Refer to this Dear Sophie column for a comprehensive overview of considerations before pursuing this path, specifically regarding any stipulations within your current employment agreement concerning startup creation.

Alternatively, you could pursue a “transfer” of your existing H-1B visa to a different employer, or to your own startup should you assume an employee position there. Because you have already been selected through the H-1B lottery by your present employer, a second H-1B – whether concurrent or transferred – will not require re-entry into the lottery process.

Establishing a startup and securing H-1B sponsorship from it is a complex undertaking. It is strongly recommended to engage both a corporate lawyer and an immigration attorney for guidance.

Remember that no work can be performed for the startup until the H-1B petition has been officially approved. This is a key reason why having co-founders is essential. Furthermore, H-1B regulations necessitate a clear employer-employee relationship between the startup and the H-1B applicant.

This means a co-founder, or the startup’s board of directors, must provide supervision and retain the authority to terminate your employment. Additionally, based on individual circumstances, we frequently advise founders that limiting their ownership stake in the startup to less than 50% may be prudent.

The previously mentioned Dear Sophie column details further important factors, including the minimum salary your startup must offer and the requirements for filing the necessary Labor Condition Application.

Exploring Green Card Options

Should you choose to file multiple H-1B petitions simultaneously, it's prudent to inquire with your employer regarding potential green card sponsorship. Alternatively, your startup may offer sponsorship, or you could explore self-petitioning options.

Available Green Card Pathways

Several avenues exist for obtaining a green card, including:

• EB-1A green card, based on extraordinary ability.
• EB-2 NIW green card, utilizing a National Interest Waiver.
• EB-2 green card, intended for professionals with advanced degrees.
• EB-2 green card, recognizing individuals with exceptional ability.
• EB-3 green cards, designated for skilled workers and professionals.

It’s important to note that, with the exception of the EB-2 NIW, all EB-2 categories and the EB-3 category necessitate approval of a labor certification, known as PERM, from the U.S. Department of Labor.

The EB-1A and EB-2 NIW green cards uniquely empower individuals to pursue sponsorship independently, without requiring employer involvement.

Successfully navigating these options requires careful consideration of your qualifications and circumstances. Understanding the requirements for each pathway is crucial for a successful application.

Exploring Opportunities with the O-1A Visa

A significant number of startup founders are eligible for the O-1A visa, a non-immigrant visa designated for individuals with extraordinary ability. It's important to note that concurrent possession of an H-1B and an O-1A visa is not permitted. Consequently, should your startup successfully sponsor you for an O-1A visa, relinquishing your existing H-1B employment will be necessary upon approval.

Compared to the H-1B visa, the O-1A visa provides a greater degree of operational freedom. Individuals can be employed directly by a petitioning company or engage in multiple projects through a representative agency.

O-1A Qualification and Support

Achieving O-1A visa qualification generally presents a higher threshold of requirements than the H-1B process. Therefore, specialized resources, including those offered by our firm, are available to assist individuals in meeting these criteria and strengthening their applications.

Despite the increased flexibility, a key similarity exists between the O-1A and H-1B visas. Applicants must demonstrate a clear employer-employee relationship between themselves and the sponsoring startup.

• O-1A Visa: Designed for those with extraordinary ability.
• H-1B Visa: Typically requires specialized skills and employer sponsorship.

The O-1A visa allows for work through an agent on multiple projects, unlike the more restrictive H-1B. Successfully obtaining an O-1A necessitates proving exceptional talent in your field.

Capitalizing on Entrepreneurial Ventures: The E-2 Visa

For startup founders originating from nations maintaining a treaty of commerce and navigation with the United States, the E-2 visa presents a viable pathway for treaty investors and their essential employees.

A comprehensive list of countries with such treaties is readily available. Further information regarding E-2 visas specifically tailored for founders and employees can be found in a prior "Dear Sophie" article and accompanying podcast episode.

Investment Considerations

While there isn't a stipulated minimum investment amount required for a founder to be eligible for an E-2 visa, it is generally recommended to anticipate an investment of at least $100,000.

This substantial investment strengthens the application when establishing a new enterprise. It's important to note that concurrent holding of an H-1B visa and an E-2 visa is not permitted; approval of an E-2 necessitates relinquishing any existing H-1B status.

Seeking Expert Guidance

A qualified immigration attorney can provide tailored advice and explore alternative options based on your unique situation.

Embark on your entrepreneurial journey with confidence!

Sophie

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

Please remember that the information contained within “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a complete understanding of the limitations of “Dear Sophie,” please refer to our comprehensive disclaimer.

You can reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is accessible on all popular podcasting platforms. She is currently accepting applications from individuals interested in being featured as guests!