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.”
I’m an international student in the U.S. with an F-1 status. I will graduate with a bachelor’s degree in computer science this May and plan to apply for OPT. I want to found a startup. Can I do that with OPT? What options would I have after OPT to continue growing my company?
— Forward-Looking Founder
Summary: Yes, you can be a startup founder on OPT! You’ll want to make sure that you set yourself up for success by properly structuring your company so you can continue to work for your startup for two more years with STEM OPT work authorization once your 12 months of OPT work authorization ends. If your company is properly structured, it can also register you in the annual H-1B lottery in March while you’re on OPT and STEM OPT. Your startup can also sponsor you for an O-1A extraordinary ability visa. Subscribe to our monthly newsletter for the latest immigration news and our upcoming webinars. Register for our 15-module course on what it takes to submit a strong application for an O-1A visa, or EB-1A or EB-2 NIW green card. Use code DEARSOPHIE for 20% off.
Full Ask Sophie™ article:
It’s so exciting to hear you’re planning ahead for your startup founder journey!
I recently chatted with founder Guanhao “Hao” Wu about his founder immigration journey, which began much like yours, as an F-1 student. Hao graduated from an American university with a degree in a STEM field and started his own company while on Optional Practical Training (OPT.) He then continued to grow his company on STEM OPT, shifting to an O-1A extraordinary ability visa to continue on his journey.
Taking this route requires strategic planning and forethought. Consult with an immigration attorney, who can provide you with guidance, as well as precautionary measures to mitigate risks and protect you along the way.
Launching a startup on OPT
As an F-1 student with OPT work authorization (work permit), you can get your company up and running and be self-employed as long as you’re putting your degree to work. You must also work full-time and have all the proper business licenses for your company that your state requires.
But you don’t have to wait until you get OPT to start setting up your company! Under immigration law, doing things like forming the legal entity for your company, pitching potential investors, or negotiating contracts are not considered work, so you are allowed to do them without OPT work authorization. That way, once you’re on OPT, you will have a full 12 months to focus on operating your startup.
Remember, F-1 students can apply for OPT up to 90 days before completing their degree but no later than 60 days afterward. Take a look at this previous Ask Sophie™ column on OPT and contact your university’s DSO (Designated School Official) for more information.
If you already know you want to maintain your startup in the U.S. and find investors here, then talk to a corporate attorney to determine how to structure your startup. In general, U.S. investors want to deal with Delaware C corporations. Even though you incorporate in the state of Delaware, your startup can be based in Silicon Valley or anywhere in the U.S.
Setting up your startup properly will also enable your startup to register you for the H-1B lottery in March. Since it only costs $10 to register for the lottery, I suggest you to talk an attorney, ensure your eligibility, and go for it as a backup to an O-1A visa. (The O-1A visa requires demonstrating that you have extraordinary abilities or accomplishments.) In order for your company to sponsor you for an H-1B specialty occupation visa, you and your startup must have an employer-employee relationship, and your startup must have enough funds to pay you the current wage based on your position and location and cover operations. I’ve helped startups that have raised less than $100k to obtain an H-1B for one of its co-founders.
Having an employer-employee relationship with your startup means that you will need to find a co-founder—or two—and it can be helpful if you personally own less than 50 percent of your startup. To have an employer-employee relationship means, for example, that your co-founder or board member must supervise you, hold you accountable for poor job performance, and even have the ability to fire you.
That employer-employee relationship will also be required for STEM OPT, the two-year OPT extension for F-1 students who graduated with a degree in an approved STEM field.
Building your startup on STEM OPT
As an F-1 student with a bachelor’s degree in computer science, you will be eligible to extend OPT for two years under STEM OPT extension. You can apply for STEM OPT as early as 90 days before your OPT work authorization is set to expire. I highly recommend filing for STEM OPT as soon as possible. To work for your startup with STEM OPT work authorization:
- You and your company must have an employer-employee relationship.
- Your company must devise a training plan for you by completing Form I-983 (the training plan for STEM OPT students). Here are instructions for filling out that form.
- Your company must be registered in E-Verify, the free online system run by the U.S. Department of Homeland Security that tracks whether individuals can legally work in the United States.
For each of the two years you have STEM OPT work authorization, your startup can enter you in the annual H-1B lottery. Read this Ask Sophie™ column on STEM OPT and the H-1B lottery.
Shifting to an extraordinary ability visa
I know many founders who did not initially qualify for O-1s when they were graduating, but they worked diligently to amass a suitable portfolio of accomplishments in their field related to their startup to become O-1A qualified.
For the O-1A extraordinary ability visa, your startup must sponsor you – and again – you and your company must have an employer-employee relationship OR you can be petitioned by an agent to provide an itinerary of services.
You must also meet at least three of the eight requirements for the O-1A. A few examples of the criteria include:
- receiving nationally or internationally recognized awards for excellence in your field (venture capital funding counts!),
- having articles about you or your startup published in major trade or media publications,
- and judging the work of others, such as serving as a judge at a hackathon.
Although U.S. Citizenship and Immigration Services (USCIS) only requires applicants to meet three of the requirements, I recommend aiming for four or more to present a strong case. For tips on expanding your portfolio of accomplishments for the O-1A, listen to this podcast episode.
Continuing to build upon your accomplishments for the O-1A will set you up for applying for an EB-1A extraordinary ability green card.
You’ve got this! Enjoy the ride!
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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!