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 a founder from Germany. Our product is already generating around $200k/year, right off the bat. Our customers are mainly U.S.-based, and we don’t plan to raise any capital from investors.
I’ve been looking into the new startup visa option and the E-2 and L-1B visas, and I’ve been pretty heads-down focused on building the product, so I’m not famous. What’s your advice on the best option?
—Game-Changing in Germany
Congrats on your early traction and U.S. market expansion! You don’t need to qualify for an O-1A to make it to the U.S., and it’s good to remember that there are a variety of work visas out there. Let me dive into each of the options you’ve mentioned for your specific set of circumstances…and offer a few others.
IEP and the proposed startup visa
Congress has not yet approved the legislation that would create a startup visa. However, International Entrepreneur Parole (IEP), which is the closest option to the startup visa, is available. To qualify, both IEP and the proposed startup visa require a founder to raise funds from qualified U.S. investors or secure a government grant or award – as well as other criteria. Since you have not and do not plan to raise funds for your startup, neither IEP nor the proposed startup visa would be right for you.
E-2 visa requires a big investment
The E-2 visa for treaty investors or essential employees is ideal for startup founders and team members whose home country has a treaty of commerce and navigation with the U.S. as Germany does. (The citizens of 81 treaty countries are eligible for the E-2 visa.)
In addition to being a citizen of a treaty country, you must own at least 50% of the company or have direct control of the company or at least 50% of the owners of the company must be citizens of the same treaty country.
To qualify for an E-2, you would have to demonstrate that you have invested or are in the process of investing a “substantial amount of capital” in the U.S. to establish and grow your startup, or that the company has made this investment, and now you need to work there. In my experience, immigration officials typically feel most confident approving an E-2 where there has been an investment of at least $100,000 for an E-2 visa. Loans secured with the assets of the business are not allowed. It does not sound like an E-2 could be a great fit for you if you make the right investment in a U.S. subsidiary, for example. Depending on your consulate, obtaining an E-2 visa interview can take several months, but in some circumstances these interviews can be waiver this year.
But there are other options!
L-1B visa fits, but L-1A might be the better option
The L-1B visa for intracompany transferees with specialized knowledge is a potential fit. The L-1B enables a foreign employer to transfer an employee with specialized knowledge of the employer’s business from one of its foreign offices to an existing U.S. office – or to open an office in the U.S. In contrast to the E-2 visa, there’s no minimum investment requirement for opening an office, and the L visa allows for Premium Processing.
To qualify for an L-1B visa, a candidate must have worked for the employer abroad for one continuous year within the past three years. If the L-1B candidate is opening a new office in the U.S., we typically recommend that the sponsoring employer must show that it has secured physical space to house the new office. Additionally, the new office must be able to support the individual within one year of the approval of the application by U.S. Citizenship and Immigration Services (USCIS).
But check out the L-1A visa! This visa is for intracompany transferees: managers and executives, and is likely the more appropriate category since you’re a startup founder. Plus, the L-1A visa offers a path to a green card directly, which the L-1B does not (usually folks on L-1Bs have to go through an EB-2 or EB-3 green card process with PERM, so it takes longer). If you decide you want to reside permanently in the U.S. and your company is successfully doing business in the U.S. for at least a year, it’s an easy jump from the L-1A visa to the EB-1C green card for multinational managers and executives.
The qualification requirements for the L-1A are similar to those for the L-1B. Specifically, L-1A visa candidates must have worked for the employer abroad for one continuous year within the past three years.
For a qualifying company, the L-1 process can be the fastest to obtain these days. Talk to your immigration attorney about whether it’s your best option.
O-1A offers another option
First of all, you don’t have to be famous to qualify for an O-1A! We’ve had much success getting O-1A extraordinary ability visa applications quickly approved for our startup founder clients.
To qualify for an O-1A visa, you must have achieved national or international acclaim and be at the top of your field. You must meet three out of eight criteria, which include:
- winning a nationally or internationally recognized award
- being featured in a major trade or other publication for work in the field
- speaking at conferences
- judging the work of others, such at a hackathon or business competition.
You’ve got this!
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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!