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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I remember reading in your column a few years ago about the International Entrepreneur Parole program and that it’s the closest thing the U.S. has to a startup visa. What happened to the program? Is it still around? How does a startup founder start building in the U.S. quickly?
— Perfect for Parole?
Thanks for your “perfectly timed” questions. Yes, the International Entrepreneur Parole (IEP) program remains available, but the time it takes for the U.S. Citizenship and Immigration Services (USCIS) to adjudicate IEP cases is more than two years, and the application and activation processes are often more time-consuming and impractical than a normal work visa such as an O-1 or H-1B.
In recognition of these issues, President Biden mandated that the Department of Homeland Security, which oversees the U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP), improve the IEP process for startup founders in AI and other critical and emerging technologies in his recent executive order on AI.
I recently chatted with Samuel Newbold, an immigration attorney based in New York City who also has a practice centered on investors and entrepreneurs. He has helped many entrepreneurs obtain IEP. One of the most direct paths to qualifying is through government grants from startup funders such as the Urban Future Lab, which partners the city, academia and the private sector to encourage economic growth, job creation and innovation.
Sam says that in his experience, IEP tends to make more sense for startup founders who have received grants or economic development funding rather than funding from venture capital or private investors due to the complex evidentiary requirements. The minimum requirement is to receive at least $106,000 in government funding, which can even be nondilutive.
“The [IEP] program requires private venture capital firms to justify their track record and that they’ve made good investments,” says Newbold. “As you can imagine, that’s very sensitive, private information” that most investors are sensitive to divulge.
Let me describe how the IEP program works and dive into how to qualify for IEP and offer alternatives.
What is IEP?
Until Congress passes a startup visa, IEP offers one of the interim options available for certain founders. Under the IEP program, startup founders can obtain up to a 30-month immigration status called “parole” to live in the U.S. with their families and scale their startup. It’s not technically a “visa” but yields a similar practical outcome: Founders at companies that received U.S. investment or grants can live and work here. The spouse and children of a startup founder who receives IEP status can also stay in the U.S. on IEP status — and the spouse is eligible for a work permit.
One 30-month extension may be granted to the startup founder and the founder’s family for a maximum stay of 5 years if the startup meets additional requirements.
How to qualify for IEP
Here are some of the key eligibility requirements for international startup founders to qualify for an initial 30-month IEP status:
- Your startup is a U.S. company.
- You founded your startup in the last 5 years.
- You hold at least a 10% ownership interest in your startup.
- You’re central to the startup and actively operate it.
- Your startup has received at least $265,000 from qualified U.S. investors or at least $106,000 in government awards or grants.
- If the monetary requirement cannot be fully met, you can show growth and job creation potential through other means.
Key requirements to extend your IEP status for another 30 months include the following:
- You must hold at least a 5% ownership stake in your startup.
- You continue to play a central and active role in your startup.
- Your startup has achieved one or more of the following during your initial IEP period:
- Has received at least $529,000 in additional qualifying funding.
- Generates at least $529,000 in annual revenue with at least 20% average annual revenue growth.
- Created at least five full-time jobs for U.S. workers.
After reaching the five-year maximum stay under IEP, you and your family must leave the U.S. If you wish to apply for a visa or a green card, you must do so from your home country via consular processing. With enough advance planning, you should be able to effectively time the transition.
The quickest option
Since the process for getting IEP is anything but rapid (many of my clients have been waiting two and a half years now with no end in sight), it’s important to consider all available options. The quickest option is the O-1A extraordinary ability visa, which can be filed with premium processing (unlike IEP). With premium processing, the USCIS will make a decision or issue a request for evidence within 15 calendar days.
The requirements for the O-1A are more rigorous, but if you received venture funding or a grant, that’s considered an award, which is one of the criteria for the O-1A.
Take a look at this previous column in which I compare the O-1A visa and IEP.
For the O-1A, you must meet at least three of the following criteria, although I often recommend meeting at least four for a strong case:
- You’ve won nationally or internationally recognized awards, such as VC funding.
- You’ve been invited to join a group that requires outstanding achievements.
- You and your work have been featured in professional or major trade publications or major media.
- You have judged the work of others in your field either as an individual or as part of a panel.
- You have made significant contributions to your field, such as patents that have been used by others.
- You have written book chapters or articles for scholarly journals, professional or major trade publications or major media.
- You are a critical employee of an organization with a distinguished reputation.
- You have a high salary compared to others in your field and geographical area.
Recently, the H-1B specialty occupation visa has become a lot more friendly and flexible for startup founders. Previously, to demonstrate an employer-employee relationship exists between the startup and its founder, someone at the company — either a co-founder or a board — would have to supervise (and have the power to fire) the founder. In addition, founders had to reduce their equity stake in their startup to 50% or give up control of their company to present a strong H-1B case, which compromised their ability to run their startup and forced them to give away valuable shares.
Now founders who hold more than half of the equity in their startup can still qualify for an H-1B or transfer their H-1B to their startup without relinquishing control of their startup to a co-founder or board. Founders can also prove an employer-employee relationship by submitting the Labor Condition Application (LCA) approved by the U.S. Department of Labor (DOL) and an employment agreement or job offer letter from their startup.
Remember, your startup will need to register you for the H-1B lottery in March. If you are selected in the lottery, and your startup’s LCA is approved by the DOL, and the H-1B petition is approved by the USCIS, then the earliest you can start working is October 1, 2024.
You’ve got this!
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