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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We are a startup overseas with 1 million users and 30,000 paying customers. We raised some seed money overseas, but now prospective investors in our Series A round want us to have a Delaware parent company. They also said they want all of the founders to get green cards. What is the fastest way to get green cards if we are from India or China?
— Innovative from India
Congrats on all your successes! These are remarkable accomplishments — and ones that you and your co-founders can use to your benefit when applying for visas and green cards to come to live and work in the United States!
Before I dive into your question, remember that as startup founders, waiting for a green card is usually too slow of a way to get to the U.S. Find a way to come to the U.S. sooner, such as through an O-1A or an H-1B with the lottery (many H-1B lottery updates coming soon — join my complimentary educational webinar this week.)
It is super important to ensure you get what you need from your investors to continue to succeed, including support with visas and green cards such as education, resources, and signing letters of recommendation. That’s what Kristen Ostro and Nicole Fuller of Strut Consulting, a VC consulting firm, emphasized during our chat for my podcast. Many founders value working with VCs in the U.S. who understand their space, are experts in the particular industry, and have the connections and customer networks to make intros to folks who will be active participants in the founders’ success, rather than just providing the capital.
Many VCs also provide support services, including recommending immigration attorneys who can assist with visas and green cards. If the prospective investors in your startup do not, I recommend you and your co-founders work with an immigration attorney, who can devise strategies for each of you based on your accomplishments and timing and guide you through the immigration process.
Country of birth
How quickly you get a green card depends on what country you were born in. All green card categories — except for those for the spouse, parents, and dependent children of U.S. citizens — have a cap on the total number issued each year. In addition, these categories have a per-country limit of 7% of the total number available. Because the demand in most green card categories from individuals born in India and China far exceeds the supply for that country, the wait times are excessively long for those individuals.
I’ve long advocated for increasing the cap on the number of employment-based green cards available each year and eliminating the per-country cap on employment-based green cards, both of which require action from Congress.
For individuals who must wait for a green card, their priority date determines their place in the green card line. Depending on the type of green card you pursue — or your startup pursues on your behalf — your priority date is either when U.S. Citizenship and Immigration Services (USCIS) receives your I-140 green card petition or when the U.S. Department of Labor receives the PERM application from your company if your I-140 has been approved.
The monthly Visa Bulletin enables you to check which green card categories for which countries and with which priority dates have reached the front of the line. Green card categories marked with a “C,” for “current,” means that green cards are immediately available for individuals born in that country. If a category has a date, which is called the cut-off date, that category is oversubscribed for individuals born in that country, so only individuals with the same priority date or earlier can get a green card.
Cross-chargeability can speed things up
You and your co-founders should also keep in mind that if your spouse was born in a country other than India or China, you can use your spouse’s country of birth rather than your own, which will enable you to get a green card faster. This is called “cross-chargeability.”
You can take advantage of it whether you are inside the country while going through the green card process or are outside the country and plan to go through consular processing. You can take advantage of cross-chargeability even if you are eligible as the principal green card beneficiary and your spouse is the dependent beneficiary.
Now let’s talk about the fastest green cards for individuals born in India or China.
Marriage-based green card
If you or any of your co-founders are in good faith married or engaged to an American citizen, getting a green card through marriage is usually the quickest path to take. There’s no annual cap on those green cards. All other family-based and employment-based green cards have numerical and per-country caps. Obtaining a green card through marriage will require you to demonstrate to immigration officials that you have a real, bona fide marriage based on true love and that you intend to spend the rest of your lives together.
As a person who aims to support folks to achieve their professional goals based on their own accomplishments, I want to move on to the fastest employment-based green card for individuals born in India or China.
The EB-1 green card category
Currently, the EB-1 green card category has the next fastest wait time for individuals born in India or China — but there’s still a long wait. The EB-1 category includes the EB-1A extraordinary ability green card, the EB-1B for outstanding professors and researchers, and the EB-1C green card for multinational managers and executives. As the name suggests, the EB-1 is the first and highest priority employment-based green card category. As such, EB-1s have the latest priority dates compared to other green card categories.
The EB-1 category is “Current” for individuals born in all countries except for India and China, according to the Dates of Filing chart in the December Visa Bulletin. (Currently, the USCIS and the Department of State, which oversees consular processing, are using the Dates of Filing chart, which has later cutoff dates than the Final Action Dates chart.) Individuals born in India who have a priority date of July 1, 2019, or earlier are eligible to get their green card. Individuals born in China who have a priority date of August 1, 2022, or earlier are eligible.
Of the three green cards in the EB-1 category, only the EB-1A allows individuals to self-petition. The EB-1B and EB-1C would require your startup to qualify and file a petition on your behalf. You and your co-founders can apply and wait for a green card from your home country and go through consular processing, but if you want to come to the United States sooner to raise funding and build your startup, the company would need to sponsor you for a work visa now. You can apply and wait for a green card while you’re living and working here.
The EB-1A and the EB-1C are likely the best green cards for you to pursue. The I-140 green card petition for the EB-1A and EB-1B are available for 15-day premium processing. The I-140 for the EB-1C is available for 45-day premium processing. (Premium processing does not impact whether a green card number will be available.) The EB-1A has the more rigorous qualification criteria: You must demonstrate you have extraordinary abilities and accomplishments by meeting at least three of 10 criteria. Your successes so far — your startup’s customers, the seed money received, and if you secure Series A funding — would help you qualify for the EB-1A green card. I discuss in more detail how to qualify for the EB-1A in my previous column.
If you want to come to the U.S. first on a work visa, the O-1A extraordinary ability visa has most of the same criteria as the EB-1A, and it’s typically easier to obtain. I discuss how to qualify for the O-1A in this column. It’s the first step that most founders in your situation would typically pursue.
The L-1A visa for intracompany transferee executives or managers could also enable you and your founders to come to the U.S. and open an office for your company. The L-1A also offers a direct path to a green card with the EB-1C green card. Both the L-1A visa and the EB-1C green card are much easier to qualify for than the O-1A visa and the EB-1A green card.
The L-1A only requires that you have been working for your company abroad for at least one of the last three years. To qualify for the EB-1C, you must have been employed with your multinational company outside of the U.S. for at least one of the last three years, and your U.S. company must have been doing business for at least one year. However, you need to keep in mind that the L-1A visa allows for a maximum stay of seven years and cannot be extended beyond those seven years. For individuals born in India or China, that might mean you will have to return to your home country before you get an EB-1C green card since there are very long backlogs for green cards.
On the other hand, the O-1A visa does not have a maximum stay and can be renewed until you receive a green card. You can still apply for an EB-1C even if you get an O-1A visa.
You’ve got this!