Welcome to another installment of “Dear Sophie,” the advice column dedicated to answering immigration questions relevant to those working in the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, notes, “The inquiries you submit are incredibly valuable in disseminating knowledge, empowering individuals globally to overcome geographical limitations and realize their ambitions.” She extends an invitation: “Whether you are involved in people operations, are a company founder, or are seeking employment in Silicon Valley, I welcome your questions for consideration in my next column.”

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Dear Sophie:

A graduate student completing an advanced degree at a U.S. university intends to co-found a startup following graduation. What visa options are available, and can the new startup or fellow co-founders sponsor me for a visa?

—Brilliant in Berkeley

Dear Brilliant,

Thank you for reaching out with your questions and for your prospective contributions. The U.S. economy benefits significantly from the innovation and job creation brought about by entrepreneurial individuals such as yourself.

Let’s address your second question first: It is, in principle, feasible for your startup to sponsor you for a visa, and it is permissible for one of your co-founders to act as your supervisor. Many visa categories and employment-based green cards necessitate company sponsorship and the demonstration of a legitimate employer-employee relationship.

In your situation, timing will be crucial, especially considering the H-1B Visa for Specialty Occupations as a potential pathway. The annual allocation of H-1B visas is generally capped at 85,000—60,000 for those holding a bachelor’s degree and 25,000 for those with a master’s degree or higher. Due to the limited number of H-1B visas and the high demand, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery each spring to determine eligibility for application.

However, certain cap-exempt H-1B options exist for startup founders involved in the education of U.S. university students, bypassing the lottery process. Given the evolving regulations surrounding the H-1B, the intricate eligibility criteria and corporate structure requirements for startup founders, and the importance of timing, I strongly advise consulting with a knowledgeable immigration attorney to guide you, your co-founders, and your startup through this process.

Recent modifications to the annual H-1B digital lottery have made the process more accessible and less financially burdensome. Furthermore, candidates with a master’s degree or higher from a U.S. institution now have an improved chance of selection in the lottery. In early 2020, sponsoring companies were able to register each H-1B candidate for a nominal $10 fee in March for inclusion in the annual lottery, a change from the previous requirement of submitting a complete H-1B petition for each candidate.

In March 2020, USCIS received nearly 275,000 registrations, exceeding the previous high of 236,000 H-1B petitions in 2016. Almost half of these registrations were for candidates with advanced degrees from U.S. colleges or universities. The prior year saw 201,011 H-1B petitions during the lottery in April. Due to COVID-19, the number of actual petitions received by USCIS following the electronic lottery decreased this year, leading to a second selection process for additional candidates earlier this summer.

If you are not selected in the H-1B lottery, you can reapply the following year, but you will need to identify a means of establishing your startup with your co-founders and working within that structure. Students on an F-1 visa can apply for OPT (Optional Practical Training), the sole student work authorization permitting you to launch and work for your own business without a supervisor controlling your employment terms.

If your degree is in a STEM (science, technology, engineering, or mathematics) field, you qualify for STEM OPT, which provides a 24-month extension of your F-1 status and work authorization. STEM OPT requires employment with an organization that exercises independent control over your employment conditions. Therefore, structuring your startup so that one of your co-founders serves as your supervisor, with the authority to hire, oversee, evaluate, and terminate your employment, is advisable to demonstrate the necessary employer-employee relationship for STEM OPT Extension, work visas, and employment green cards. OPT is valid for a maximum of 12 months, with STEM OPT adding an additional 24 months, so this timeline should be considered when formulating your immigration strategy and contingency plans.

Your startup can simultaneously register you for the H-1B lottery next March while you are in F-1 OPT or STEM OPT status and also initiate the process for either an EB-2 green card for professionals with an advanced degree or the EB-3 green card for skilled workers and professionals. Both green card options require your startup to complete the PERM labor certification process before filing a green card petition. Significant equity ownership in the company may pose challenges to your PERM prospects.

Another potential route involves the O-1A Visa for Extraordinary Ability. To qualify for an O-1A, a candidate must meet at least three of the following eight criteria:

1. National or international recognition through prizes or awards for excellence in your field.
2. Membership in associations demanding outstanding achievements or expert recognition.
3. Significant media coverage of you and your work in major trade or professional publications.
4. Participation as a judge in your field.
5. Original, significant contributions to science, scholarship, or business.
6. Authorship of scholarly articles in professional journals.
7. Employment in a critical role for distinguished organizations.
8. A demonstrably high salary.

The O-1A can pave the way for applying for an EB-1A extraordinary ability green card or an EB-2 NIW (National Interest Waiver for exceptional ability), which do not require employer sponsorship.

For recent graduates and startup founders who lack the experience, credentials, or achievements to qualify for an O-1A visa, we have recently launched the Extraordinary Ability Bootcamp, an online course providing an in-depth exploration of the O-1A visa, as well as the EB-1A and EB-2 NIW green cards. Use code DEAR SOPHIE for a 20% discount on Bootcamp enrollment.

The E-2 Visa for Treaty Investors may also be an option, contingent upon your country of citizenship and the nationality of your co-founders. The E-2 visa permits nationals from countries with investment treaties with the U.S. to enter the U.S. when investing capital in a U.S. business. If you are a citizen of a treaty country and you and/or other citizens of the same country own at least 50% of your company’s shares, you may be eligible for an E-2. This visa also requires your startup to invest a “substantial amount of capital” in the U.S.—whether through venture capital or intellectual property—and to generate sufficient income to support you and cover operating expenses, or demonstrate the ability to do so within five years of receiving the E-2 visa. E-2 visas are also available for employees who are not investors but possess skills essential to the business.

I wish you the best of luck!

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 further details 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!