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.”
After trying to find an H-1B job to immigrate to the United States for several years, I took a senior software engineer position with a company in Canada.
My dream is to immigrate to Silicon Valley to start my own venture. Any advice?
— Eager Entrepreneur
Thanks for sharing your experience. In honor of National Immigrants Day, I paid homage in my podcast to the immigrants who come to the United States to pursue their dreams and help shape so many of the things I appreciate about our country. Research consistently shows that immigrants — particularly immigrant entrepreneurs like you, through your fortitude, grit and determination — create ventures that lead to innovation, job creation and economic growth in the United States.
According to a 2020 report by the New American Economy, 44% of Fortune 500 companies, which includes both public and private entities, were founded by immigrants or their children. Together, those companies generated $6.2 trillion in revenue in the fiscal year 2020, which is greater than the GDP of many countries, including Japan, Germany and the U.K.
Although U.S. immigration policy does not make it easy for people to come to the United States to live the life of their dreams, it’s still possible. As you may know, most U.S. work visas and statuses require an employer, which could be your own startup.
As always, I recommend that you consult an immigration attorney who can help you structure a personalized immigration strategy based on your specific goals surrounding your vision and ideal timeline. Below are some options to consider with your immigration counsel.
L-1 visa for intracompany transferees
The L-1 visa is for individuals who are transferring to the U.S. from a company abroad. If you continue to work for your current employer in Canada for at least one year and your employer is willing to sponsor you, your employer could transfer you to its office or operation in the United States, or you can set up an office for your employer either on an L-1A visa for intracompany managers and executives or an L-1B visa for intracompany specialized knowledge workers.
Alternatively, if you launch your startup venture in Canada and work there for at least one year, then your startup could potentially sponsor you for an L-1A visa to open an office in the U.S.
What’s more, the L-1A offers a path to a green card: If you want to remain permanently in the U.S., your company or employer can petition for an EB-1C green card for multinational managers and executives on your behalf after the U.S. entity has been doing business at least for a year.
International Entrepreneur Parole
If you start a company, incorporate it in the United States, own at least 10% of the company and have raised at least $264,147 in angel, VC or other funding within 18 months of incorporation (or have other evidence of your propensity for success), you may qualify for International Entrepreneur Parole.
IEP will allow you to stay up to five years to scale your startup. For more details on the qualification requirements for IEP and the process for getting entrepreneur parole status, take a look at a previous Ask Sophie™ column. For tips on how to set up your company in the U.S., listen to my chat with Lindsey Mignano, a founding partner at corporate law firm Smith Shapourian Mignano.
E-1 or E-2 visa for treaty traders or investors
The U.S. Department of State maintains a list of treaty countries and whether they are eligible for the E-1 visa, the E-2 visa or both. Neither China nor India are treaty countries. Canadian citizens are eligible for both the E-1 and E-2.
Consider an H-1B visa
There is technically no limit to how many H-1B employers you can have or how many hours you work in an H-1B position. One option would be to find a company that wants to hire you for a position in the U.S. and is willing to sponsor you for an H-1B visa, which would likely require you to go through the random lottery process.
You could keep that H-1B job for stability and have your own startup sponsor you for an H-1B visa at the same time. Another option would be to get a cap-exempt H-1B (an H-1B that would not require you to go through the annual H-1B lottery) through a nonprofit, such as the Open Avenues Foundation (OAF) and have your own startup sponsor you for an H-1B visa concurrently. We’ve supported many companies who nominate their employees to be fellows at OAF.
Keep in mind that one of the key requirements for the H-1B is that your startup and you must have an employer-employee relationship. That means someone at your startup, such as a co-founder or the board of directors, must have the ability to supervise you, hold you accountable for poor job performance and fire you, among other requirements.
Check out this previous Ask Sophie™ column about immigration options that allow you to launch your own startup. In that column, I further discuss IEP, the E-2 visa, H-1B, and other visas and green cards that you can consider.
Wishing you all the best in making your way to Silicon Valley to create the startup and the life of your dreams!
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
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!