by on Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
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Dear Sophie,
My colleague and I work for a large tech company. We have an idea that we want to pursue for our startup. We’re both on H-1B visas. Our I-140 EB-2 green card petitions have been approved, but we’re waiting for our priority dates to become current for our green cards. How do we get our H-1Bs transferred to a new startup? Can our green cards be transferred to our new startup too?
— Emerging Entrepreneur
Dear Emerging,
Congrats on deciding to create your own company! I’ve got answers and options for you!
Given your new journey, take a listen to my compelling conversation with Miles Randle about his venture studio experience in helping founders navigate immigration. We shed light on how the visa and green card processes can affect how quickly founders reach successful startup milestones and the traits that contribute to a successful founder.
The short answer to your second question is unfortunately no, the I-140s for your EB-2 advanced degree or exceptional ability green cards are not transferable to your startup. Your startup will have to file a new I-140 to sponsor you for an employment-based green card or you will have to self-petition for an EB-1A extraordinary ability green card or EB-2 NIW (National Interest Waiver) green card. However, your priority date will be “transferable.” And if you made it to the I-485 stage, you might have other portability options.
I recommend consulting an immigration attorney about transferring your H-1B and green card options that meet your plans and goals. An immigration attorney can work with you to determine the best strategy — and backup options — for you and your colleague to reach your dreams. Now, let’s dive in!
Setting up your business
Keep in mind that you are only allowed to work for the company that sponsored your H-1B specialty occupation visa. If you work for your startup — even without pay — before transferring your H-1B, you risk losing not only your status but also your ability to remain in the United States. Talk to an immigration attorney about what is and isn’t allowed and the correct order of options to de-risk your personal situation.
Generally, U.S. investors want to deal with Delaware C corporations, and simply creating one is not considered “work” under immigration law. However, you’ll want to be very intentional about what, if any, actions you take after the company is formed.
For the formation process, talk to a corporate attorney to determine how to best structure your company, including looking over your and your colleague’s offer letter and any intellectual property agreements from your current employer. For now, start mapping out your role at your startup, how many co-founders you will have and their roles, how much equity everybody will receive, and prospective investors for your startup so your corporate attorney and immigration lawyer can evaluate the viability of the plan.
Certain exploratory business activities are likely authorized, such as meeting with prospective hires and investors and doing research to learn more about the market for your startup. However, for you and your colleague to transfer your H-1B visas to your startup, your startup will need to be operational and have some runway or traction to demonstrate its ability to pay you both the prevailing wage based on your job duties and location where you will be working and its ability to do so for at least a year. To get your startup to this point, you and your colleague may need to take on a co-founder who can put in the work, or you might need to time your own visa transfer very carefully.
Once the new company has officially extended you a job offer, it can initiate the H-1B transfer process, including even if you are a majority owner under new USCIS (U.S. Citizenship and Immigration Services) guidance. As an alternative, consider the O-1A extraordinary ability visa, which is a much quicker visa option and would give you and your colleague more flexibility and peace of mind. I discuss the O-1A in more detail below.
Timing is key
Timing is an important consideration when transferring your H-1B to another company whether or not that company is your own.
The maximum stay in the United States on an H-1B is six years unless you have an approved I-140 employment-based green card petition, which you do. Your employer can request an H-1B extension beyond the maximum six-year stay as long as you have an approved I-140 and that I-140 remains valid.
Once you leave your job, your employer will likely withdraw your green card petition, so make sure it’s been at least 180 days since you and your colleague’s I-140 was approved by U.S. Citizenship and Immigration Services (USCIS). Once an I-140 has been approved for 180 days, it remains valid for purposes of extending your H-1B beyond the six-year limit even if the I-140 is withdrawn by your employer. In addition, if you have an H-4 spouse, your spouse will be able to continue to obtain an H-4 EAD (Employment Authorization Document) based on the approved I-140 petition even if your employer withdraws it.
You and your colleague will retain your priority date from the I-140 EB-2 green card petition your employer filed on your behalf. That means you will be able to maintain your place in the green card line even though your employer withdraws your I-140 and you have to file a new I-140 green card petition.
You and your colleague should consider self-petitioning for either an EB-1A extraordinary ability green card or EB-2 NIW (National Interest Waiver) for individuals with an advanced degree or exceptional ability. If either you or your colleague were born in India or China, I suggest building up your qualifications to apply for an O-1A and then an EB-1A. You still face a wait, but because the EB-1 is a first-preference green card, the wait time is years — if not decades — shorter than the second-preference EB-2 category.
Take a look at this column in which I talk more about the EB-1A and EB-2 NIW green cards.
Transferring your H-1B
“Transferring” your and your colleague’s H-1B to your startup means your startup will file new H-1B petitions on your behalf without having to go through the annual H-1B lottery.
First, your startup needs to get its Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification. It should have a bank account and enough funds to cover your salary or a business plan that can clearly demonstrate how your prevailing wage will be paid during your future H-1B period.
After that, your startup will file a Labor Condition Application (LCA) with the Department of Labor on behalf of you and your colleague. For the LCA, your startup must promise to pay you and your colleague at least the prevailing wage based on your position and work location and ensure that your employment conditions won’t negatively impact American workers. Employers don’t need to submit evidence to the Department of Labor with the LCA, but they must post a copy of the H-1B notification, which can be done electronically, and keep all supporting documents in a file and make it available for public viewing.
Once the LCA is approved, your startup can file an I-129 H-1B petition to the USCIS. Check out this podcast on what makes a strong H-1B and look at the Ask Sophie column from last week in which I discuss how to demonstrate an employer-employee relationship exists between a startup and its founder.
For an H-1B transfer, if you are currently maintaining valid H-1B status, you can start working when your startup receives a receipt notice from the USCIS!
Recent new guidance from the USCIS clarifies that even if you don’t have a board that can fire you, and even if you do own more than half of the equity of your startup, it is still possible to successfully obtain an H-1B as an owner-beneficiary. This is great news for founders!
Considering the O-1A
The preparation can take longer, but I sometimes recommend that founders apply for an O-1A visa if they meet the standards for extraordinary ability. The O-1A does not have a prevailing wage requirement or a maximum stay like the H-1B. The O-1A can be extended indefinitely as long as the conditions under which it was originally granted remain valid.
You may have to invest a few months and a little focused effort into building up your qualifications for the O-1A. You must meet at least three of the following criteria to qualify, but for a strong case, I usually recommend meeting at least four:
- Earned nationally or internationally recognized awards, including funding or acceptance into a highly competitive accelerator or incubator program with stringent selection requirements.
- Invited to join a group or association that demands outstanding achievements.
- Featured in professional or major trade publications or major media.
- Made significant contributions to your field as demonstrated by your work generating widespread media attention or your work has been used by others through licensing patents or contracts.
- Judged the work of others in your field, such as in hackathons or pitch competitions.
- Written articles that have been published in major media or professional publications.
- You are a critical or essential employee for a company with a distinguished reputation.
- You command higher than the average pay for early-stage startups.
An O-1A can also put you in a great position to pursue an EB-1A or EB-2 NIW green card.
You’ve got this!
— Sophie
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