Immigration Options for Startups: A Guide

Navigating Immigration for Tech Professionals: A "Dear Sophie" Update

This is another installment of “Dear Sophie,” a resource dedicated to addressing immigration concerns relevant to those working within the technology sector.

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

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Dear Sophie,

I have been employed in the U.S. under an H-1B visa for almost two years.

I am grateful for my company’s sponsorship and being selected in the H-1B lottery, but I feel stagnant in my current role. My aspiration is to launch my own venture and operate independently within the United States.

What immigration pathways might enable me to pursue this goal?

— Seeking Satisfaction near Stanford

Dear Seeking,

Let’s begin with some noteworthy updates in the realm of immigration! Recently, U.S. Representative Zoe Lofgren (D-CA) proposed the LIKE Act in the House of Representatives, specifically designed to support startup founders. We will detail the potential implications of this act for your entrepreneurial ambitions shortly.

Furthermore, U.S. Citizenship and Immigration Services (USCIS) initiated a second H-1B lottery due to an insufficient number of petitions received to meet the annual quota. If you or your employer were chosen in the lottery, ensure that the H-1B petition is submitted by November 3.

According to Edward Gorbis, experiencing job dissatisfaction while on an H-1B visa is not uncommon. However, there are proactive steps you can take to manage your U.S. immigration status and establish independence.

I recently interviewed Gorbis for my podcast. He is the founder of Career Meets World and a performance coach specializing in assisting immigrants and first-generation professionals in discovering fulfillment and success in their careers and lives.

Gorbis observed that “after immigrants achieve a degree of stability, they begin to contemplate their identity, values, and core principles.” It is within everyone’s capacity to reshape their mindset for achievement.

The initial step, as Gorbis suggests, is to visualize overcoming the obstacles that prevent you from engaging in work that truly resonates with your passions. Here are several options to help you envision building a life aligned with your dreams.

Launching Your Startup in the U.S. and Securing Funding

For entrepreneurs with ambition, the International Entrepreneur Parole (IEP) program presents a valuable opportunity. This U.S. immigration initiative enables CEOs, CTOs, and other key personnel to reside within the country for up to 2.5 years, with the possibility of a 2.5-year extension, to operate their businesses.

Furthermore, a work permit can be obtained by the entrepreneur’s spouse. This program offers a pathway for establishing and growing a company within the United States.

IEP Qualification Requirements

To be eligible for IEP, applicants must hold at least a 10% ownership stake in a U.S. company. A common structure for this is a Delaware C corporation registered in California.

Demonstrating financial viability is also crucial. While having at least $250,000 in a company bank account, sourced from qualified U.S. investors, is ideal, alternative evidence showcasing the company’s potential for rapid growth and job creation within the U.S. can also be submitted.

Future Prospects: The LIKE Act

A potential startup visa and a streamlined path to a green card are currently under consideration for entrepreneurs and their essential employees. The Let Immigrants Kickstart Employment (LIKE) Act, recently introduced by Lofgren, proposes a longer permissible stay – up to eight years – contingent upon the startup’s success in generating jobs and substantial revenue.

The proposed requirements for this startup visa align with those of the IEP program, offering a more extended timeframe for establishing a thriving business.

Contribution to the LIKE Act

I was privileged to participate in the drafting of the LIKE Act. It was incredibly rewarding to see my suggestions incorporated into the legislation.

These included provisions such as exempting Startup Green Cards from the visa bulletin, clarifying the possibility of obtaining consecutive Startup Visas from different companies, outlining the allocation of employee visas to startups, ensuring dual intent status for the Startup Visa, and incorporating premium processing options.

I am eager to support the passage of this bill into law. If you are interested in contributing to this important cause, please do not hesitate to contact me.

Exploring Employment Opportunities While on an H-1B Visa

From a technical standpoint, the number of H-1B employers an individual can have, and the hours worked in an H-1B position, are not legally restricted. Therefore, considering alternative employment options is a viable strategy.

One possibility involves obtaining concurrent H-1B visas. This allows you to maintain 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 resource for guidance before pursuing this route.

Alternatively, you could transfer your current H-1B visa to a different employer, including your own startup should you choose to work there. Crucially, having already been selected in the H-1B lottery through your present employer means you won’t need to repeat that process for a subsequent H-1B, regardless of whether you opt for a concurrent or transfer application.

Establishing a startup capable of sponsoring your H-1B visa is a complex undertaking. It is strongly recommended to seek counsel from both a corporate lawyer and an immigration attorney. Remember, no work can be performed for the startup until the H-1B petition is officially approved.

This is why having co-founders is particularly beneficial. An employer-employee relationship is a fundamental requirement for H-1B visas. This necessitates that a co-founder, or the startup’s board of directors, provides supervision and retains the authority to terminate your employment. Furthermore, it is often advisable for founders to maintain an ownership stake of less than 50% in the startup when applying for an H-1B visa.

Exploring Green Card Options

Should you choose to file concurrent H-1B petitions, it's prudent to inquire with your employer regarding potential green card sponsorship. Should your current employer be unable to offer this support, alternative pathways exist. A startup company may sponsor your application, or you might qualify to self-petition for a green card through one of the following avenues:

• The EB-1A green card, designed for individuals demonstrating extraordinary ability.
• The EB-2 NIW (National Interest Waiver) green card.
• The EB-2 green card, available to professionals with advanced degrees.
• The EB-2 green card based on exceptional ability.
• EB-3 green cards intended for skilled workers and professionals.

It’s important to note that most EB-2 green cards – with the exception of the EB-2 NIW – and all EB-3 green cards necessitate prior approval of labor certification (PERM) from the U.S. Department of Labor. The EB-1A and EB-2 NIW green cards, however, permit individuals to sponsor themselves.

Exploring Opportunities with the O-1A Visa

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

The O-1A visa provides a greater degree of professional freedom compared to the H-1B visa. Unlike the H-1B, it allows for employment with either a single sponsoring organization or through multiple engagements facilitated by an agent.

Qualification and Support

Obtaining an O-1A visa generally presents a higher threshold for qualification than securing an H-1B visa. However, resources are available to assist individuals in meeting these requirements. Expert guidance, such as that offered by specialized firms, can be invaluable in the qualification process.

Despite the differences, the O-1A visa shares a common requirement with the H-1B visa: demonstrating a clear employer-employee relationship between the applicant and the sponsoring startup.

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 valuable pathway for investment and employment. A comprehensive list of treaty countries is readily available for review. Further information regarding E-2 visas specifically for founders and their employees can be found in a prior "Dear Sophie" article and accompanying podcast.

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 invest a minimum of $100,000. This substantial investment strengthens the application considerably. 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.

Personal circumstances vary, and a qualified immigration attorney can provide tailored legal counsel and explore alternative options best suited to your individual situation.

Embark on your entrepreneurial journey with confidence and pursue your aspirations!

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 should not be considered legal advice. A complete disclaimer outlining the limitations of this column is available for your review. Direct contact with Sophie is possible 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.