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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.”
Dear Sophie,
I’ve been working on an H-1B in the U.S. for nearly two years. While I’m grateful to have made it through the H-1B lottery and to be working, I’m feeling unhappy and frustrated with my job.
I really want to start something of my own and work on my own terms in the United States. Are there any immigration options that would allow me to do that?
— Seeking Satisfaction
Dear Seeking,
Job dissatisfaction and frustration while on H-1B is normal, according to Edward Gorbis. He is the founder of Career Meets World and a performance coach who specifically works with immigrants and first-generation professionals to help them find fulfillment and thrive in their careers and life. I recently spoke with him for my podcast, “Immigration Law For Tech Startups.”
He says that “once immigrants reach stability, they start to think, ‘Who am I, what do I value, what’s my core identity?’” He partners with people to help them to gain a better understanding of why they think the way they do, teach them how our brain really works, and then reshape and retrain the brain for success.
Gorbis says that imagining overcoming the hurdles that stand in the way of doing the work that will fulfill you is the first step. So, here are some options that can help you imagine how to move toward building the life of your dreams.
Image Credits: Joanna Buniak / Sophie Alcorn
Raise $250,000 and be the CEO
A great new option for aspiring entrepreneurs is International Entrepreneur Parole, a new immigration program in the United States that allows CEOs, CTOs and others to obtain a 2.5-year immigration status. You can live in the U.S. and run your company. Your spouse can work and you could be eligible for a 2.5-year extension.
How to qualify? You’ll need to own at least 10% of a U.S. company, such as a Delaware C corporation registered in California. Ideally, you’ll want to show that your company bank account has at least $250,000 raised from qualifying U.S. investors prior to applying, but you can demonstrate other evidence to show that your company has the potential to grow rapidly and create jobs in the U.S.
See yourself at another company
There is technically no limit on how many H-1B employers you can have or how many hours you work — or how few hours you work — in an H-1B position. So, think about other companies.
One option would be to have concurrent H-1Bs: Keep your current H-1B job for stability and start your own company, preferably with another individual or two, and have your startup sponsor you for an H-1B. Take a look at this Ask Sophie™ column to look at what to do before embarking on this path, particularly checking your current employment contract about any limitations to creating a startup that may exist.
Another option would be to “transfer” your H-1B to another employer, or your own startup if you are going to be an employee there. Since you already went through the H-1B lottery with your current employer, you will not have to go through the lottery process again for a second H-1B whether you choose the concurrent or transfer option.
Setting up a startup and having your startup sponsor you for an H-1B is complicated, so I suggest you work with both a corporate attorney and an immigration attorney. Keep in mind that you will not be able to do any work for your startup until an H-1B with your startup has been approved, which is one of the reasons why having a co-founder or co-founders is crucial. Another reason is that H-1Bs require that an employer-employee relationship exists between a startup and the H-1B candidate. That means a co-founder (or the startup’s board) must supervise you and have the ability to fire you. Moreover, under an H-1B, we often advise founders based on their individual circumstances that it may be best to own less than a 50% stake in your startup.
The Ask Sophie™ column mentioned above discusses additional things to keep in mind, including the minimum salary your startup would have to pay you and filing the required Labor Condition Application.
Consider a green card
If you end up pursuing concurrent H-1Bs, consider asking your employer whether it is willing to sponsor you for a green card. If that’s not the case, your startup can sponsor you for one, or you can self-petition for a green card:
- EB-1A extraordinary ability green card
- EB-2 NIW National Interest Waiver green card
- EB-2 green card for professional holding advanced degrees
- EB-2 exceptional ability green card
- EB-3 green cards for skilled workers and professionals
All EB-2 green cards — except the EB-2 NIW — and the EB-3 green card require labor certification approval (PERM) from the U.S. Department of Labor.
The two green cards that allow an individual to self-sponsor are the EB-1A and EB-2 NIW.
Imagine yourself doing gigs in your field
Many startup founders qualify for an O-1A extraordinary ability non-immigrant (temporary) visa. However, you cannot have both an H-1B and an O-1A visa, so if your startup sponsors you for an O-1A visa, you will be required to leave your current H-1B job once an O-1A is approved.
The O-1A offers more flexibility than an H-1B. You can work for a single petitioning company or through an agent working on multiple gigs. However, qualifying for an O-1A is more difficult than an H-1B, so there are resources, such as through my firm, that support people with becoming qualified. The one similarity with the H-1B is that you must show that your startup and you have an employer-employee relationship.
Invest in your own company
The E-2 visa for treaty investors and employees is ideal for startup founders whose home country has a treaty of commerce and navigation with the U.S. Here is a list of treaty countries. For more details on E-2 visas for founders and employees, check out this previous Ask Sophie™ column and podcast episode on E-2 visas.
Although there is no minimum dollar amount that a founder must invest in a startup to qualify for an E-2, we often advise individuals to be prepared to invest at least $100,000 to create a new business to have a strong case. You cannot have both an H-1B and an E-2, so you will need to leave your current H-1B job if your E-2 is approved.
An immigration attorney could offer additional options based on your personal circumstances.
Enjoy the journey of building your dreams!
Sophie
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!
