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 am a founder of a startup on an E-2 visa. I am in the process of raising funds, which will eventually reduce my ownership of the company and prevent me from meeting the E-2 requirements. What can I consider next that would also allow my spouse to continue working?
— Fintech Founder
Great question! As you know, the E-2 visa for treaty investors, essential employees, and spouses require that at least half of the U.S. business is owned by people or companies from your country of citizenship. (There are more requirements, but those are the basics!).
I recently shared updates about some immigration changes on my podcast that affect some of the options that may be open to you, such as the International Entrepreneur Parole program and green cards. For additional options that meet your goals and any timing issues you have, I recommend that you consult an immigration attorney.
Most founders would initially consider applying for an O-1A for extraordinary ability or an H-1B for specialty occupations, but usually dependent O-3 and H-4 spouses are not immediately eligible to obtain work authorization.
Many startup founders, particularly those who have secured funding from investors, qualify for the O-1A, which is one of the quickest work visas to obtain and has some of the most stringent requirements. However, spouses are not eligible to apply for a work permit merely based on O-3 status.
Alternatively, if your equity is diluting, you might actually be better poised for an H-1B. This option can be made more predictable through an alternative to the H-1B random lottery in the spring if you pursue a cap-exempt H-1B with a nonprofit or other qualified organization and possible concurrent employment. How does it work? Having one cap-exempt H-1B means you don’t have to go through the H-1B lottery process. Next, your startup could concurrently sponsor you for an H-1B, avoiding the lottery process as well. However, your spouse would not be eligible to apply for an H-4 work permit until you reach certain milestones in the green card process.
If you’re currently in the U.S. in E-2 status, you might consider filing for a Change of Status with USCIS. Premium processing is available for both the O-1A and H-1B petitions. With premium processing, U.S. Citizenship and Immigration Services (USCIS) guarantees it will expedite its decision within 15 business days. A decision means either approval, a request for more evidence or a denial. Seeking a change of status is not the same as applying through a consulate abroad for a single- or multiple-entry visa in your passport.
International Entrepreneur Parole
If you established your company within the past 18 months, raised at least $264,147 in funding from a U.S. investor or investors (or $105,659 in government awards or grants) and maintain at least 10% equity in your startup, then you might qualify for International Entrepreneur Parole (IEP). IEP allows you and your family to stay in the U.S. for up to 30 months — and your spouse is eligible to obtain a work permit.
I’m celebrating a victory — I recently helped advocate to make IEP better for founders, and as a result, one of the IEP program’s largest challenges was recently removed. Although IEP allows for an initial stay in the U.S. of up to 30 months, U.S. Customs and Border Patrol (CBP) officers, who have the final say on whether you and your family are granted IEP and for how long when you physically enter the country, were only authorizing entry in 12-month increments.
That was putting a burden on families, because it meant you and your family would have to exit and reenter the U.S. again in 12 months. That also meant that an IEP spouse’s work permit was only valid for a few months given the backlog in processing applications and the fact that the work permit is only valid for as long as the IEP stay is valid.
I’m happy to report that this situation has changed for the better! I’m part of a group that is offering feedback to the government on how to make the IEP program more efficient and effective. We recently received confirmation that CBP now has the capacity to approve an initial stay in the U.S. for the full 30 months (not just 12 months at a time).
Green card options
Except for perhaps the green card through marriage, green cards take much longer to obtain than a work visa. Most employment-based green cards, such as the EB-1A green card for individuals with extraordinary ability and the EB-2 NIW (National Interest Waiver) green card for individuals with exceptional ability, take a couple of years or potentially longer if you were born in India or China and you don’t have a priority date yet.
If you were born in China or India, you face waiting several years for a green card number to become available under the EB-2 NIW category. Processing for the EB-1A is the quickest of the two, particularly since this category is current for all countries according to the November Visa Bulletin.
The Diversity Immigrant Visa Program (DV Program) offers another green card option, but it could take up to two years to get a green card if you’re selected in the annual DV Program lottery. The registration period for the fiscal year 2023 lottery is currently open through November 9, 2021, at 12:00 p.m. EST.
Each year, the U.S. Department of State, which oversees the DV program, reserves 50,000 green cards for individuals born in countries that have low rates of immigration to the United States. The State Department publishes instructions each year, which includes the countries whose natives are eligible to register for the annual diversity lottery. Here is the latest version.
Be aware that as of October 1, 2021, all green card candidates must be fully vaccinated against COVID-19 before their immigration medical examination.
One benefit of pursuing a green card is your spouse’s work authorization. If you’re currently in the U.S. and able to get to the stage of filing an I-485, the adjustment of status application, you and your spouse can also each file a work permit application, which would allow your spouse to work for an employer or be self-employed in the U.S. Many founders on E-2, for example from Europe, choose to self-petition an EB-2 NIW green card and concurrently file adjustment of status applications for the whole family.
Wishing you the best on whatever path you choose to take!
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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!