Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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I am an entrepreneur with a company based in India.
Down the road, I want to move to the U.S. to seek venture capital funding to expand my company while my co-founders remain in India.
How can I come to the U.S. to set up my company and have my operation in India linked to it?
— Expanding Entrepreneur
You’re in great company! Many international founders with growing businesses around the world are looking to come to the U.S., particularly to Silicon Valley, San Francisco and New York, for market access, venture capital, talent acquisition, opportunity or stability. Being in the U.S. has returned to importance since in-person meetings and building in-person trust networks are once again the priority.
Danny Crichton, the head of editorial at Lux Capital, a VC firm that focuses on emerging science and deep tech, told me that the cities that became popular destinations for science and AI tech founders in recent years, such as Los Angeles, Miami, Austin, Pittsburg, Toronto, Berlin, and Stockholm, “are struggling” or have “faded from view.” He says most of the deep tech talent today is concentrated in four cities: San Francisco, New York, London and Paris.
Now, let me dive into your question, taking the last part first. 😉
Setting up for success
I recommend working with an immigration attorney and a corporate attorney. An immigration attorney can determine the best visa and green card options based on your specific situation and long-term goals. A corporate attorney can discuss the best structure for your U.S. entity to make it attractive to investors. Most U.S. investors will often require you to ensure that your U.S. company is a Delaware C corporation and is the parent company, while your Indian company is the subsidiary.
The relationship between your operation in the U.S. and your operation in India will qualify for the two visa options and their related green cards I discuss below. For all visa and green card options, it’s important to establish that your company is conducting business legally in the U.S., is viable with growth potential, and can pay you.
Getting here — and staying here
If you were born in India (and for people born in China), it’s important to consider your long-term green card strategy early since there are very long backlogs for green cards for individuals born in India and China.
If you’ve been working for your company in India for at least one year, you may want to consider an L-1A visa for intracompany transferee executives or managers. The L-1A allows you to come to the U.S. to open an office for your company. The L-1A also offers a direct path to a green card with the EB-1C green card for multinational transferee executives or managers.
For the EB-1C green card, you must have been employed with your multinational company outside of the U.S. for at least one of the last three years, and the U.S. company must have been doing business for at least one year.
The L-1A allows for a maximum stay of seven years in the U.S.: One year initially if you are opening an office in the U.S. and two three-year extensions. If you do not get a green card or find another visa option, you will have to leave the U.S. after seven years and must wait at least one year before you can apply again for an L-1A.
Another option is the O-1A extraordinary ability visa, which is often a great — and relatively quick — option for qualifying founders. The O-1A visa criteria significantly overlap with the EB-1A green card criteria. While the bar for qualifying for the EB-1A green card is higher than the O-1A visa, obtaining an EB-1A is usually accessible for O-1A visa holders.
L-1A and EB-1C nitty-gritty
Your startup must apply for an L-1A on your behalf. If you are coming to open an office in the U.S., your application must provide evidence to the U.S. Citizenship and Immigration Services (USCIS) that your company has already secured office space in the U.S. Your application must also demonstrate that the U.S. business will support your position within one year of the L-1A visa being approved.
The USCIS requires your company to have a physical office in the U.S., which demonstrates your stability and commitment, and a U.S. bank account with sufficient funds to get operations going. We’ve been successful in getting L-1 approvals for companies located in a co-working space; typically it’s much easier for companies that rent dedicated rooms and don’t just rely on hot desks.
For the L-1A visa application, you will need to submit documents such as a business plan, growth models and an organization chart. To extend the L-1A for three years after the first year, you will need to show your U.S. business has met your growth models and is viable.
Your company will have to sponsor you for an EB-1C green card. The EB-1C is part of the broader EB-1 category, which is the first-preference employment-based green card category. As its name suggests, EB-1 green cards are the first preference for employment-based green cards and are highly regarded given the high level of expertise and qualifications required to get one. As a result, they generally have faster processing times.
Individuals born in India still face waiting a few years for an EB-1C green card number to become available. I’m hopeful the wait time will drop a bit when the new fiscal year begins on October 1. We should know more in the next couple of weeks, when the October Visa Bulletin is released.
While the EB-1C recently became eligible for 45-day premium processing, that processing time only applies to filing a Form I-140 green card petition, not the second step in the green card process: filing Form I-485, the application to register permanent residence or adjust status. You can file an I-485 only if there are green card numbers available for individuals in your country of birth. Due to the numerical and per-country caps on green cards, individuals born in India and China face longer waits.
O-1A and EB-1A nitty-gritty
For an O-1A, a candidate must meet at least three out of eight criteria, although I typically recommend meeting four or more for a strong petition:
- Received nationally or internationally recognized awards — typically two or more — for excellence in your field.
- Invited to join a group or association that requires outstanding achievements in your field.
- Featured in several professional or trade publications or major media.
- Judged the work of others in your field either as an individual or as a member of a panel.
- Made original or significant contributions to your field.
- Written articles that have been published in scholarly journals, professional journals, trade publications or major media.
- Considered a critical or essential employee for a distinguished organization.
- Command a higher-than-average compensation in your field, which can include equity in your company.
For the EB-1A, a candidate must meet at least three out of the 10 criteria, but like the O-1A, I recommend four or more. The criteria are the same with two additional options that apply to individuals in the arts field.
Your U.S. company must sponsor you for an O-1A. There are no limits on the number of times the O-1A can be extended. Either your company can sponsor you or you can self-petition for an EB-1A green card. Both the O-1A and EB-1A applications are eligible for 15-day premium processing. But keep in mind that premium processing does not apply to the I-485 whenever your priority date is current.
Bonus: If your spouse was born in a country other than India, you can use your spouse’s country to determine your wait in line for a green card, either the EB-1C or EB-1A. This is called “cross-chargeability” and can significantly speed up the process!
To use one of these options, you would either need to use your Delaware corporation as the sponsor, or for the EB-1A and EB-2 NIW green cards, you can self-petition.
Relax! You’ve got this! Enjoy your journey!
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Sophie Alcorn, 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.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!