Here’s another edition of “Dear 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 co-founded a startup in Pakistan with a couple of cofounders a few years ago. One of the co-founders and I want to move to the United States, accessing the U.S. market. What visa options are available to us? Thanks in advance for your help!
— Purposeful in Pakistan
Congrats on making the decision to grow your business in the United States!
Before I dive into the visa options that may be available to you and your co-founder, it’s super important to set up your company so that it can successfully sponsor you and your co-founder, and other hires for visas and green cards while also attracting investors. I recommend you consult an immigration attorney and a corporate attorney for assistance. In addition, many companies help founders both in the United States or abroad incorporate their business in the U.S., open a business bank account in the U.S., and coordinate handling legal paperwork and other tasks in the U.S. I recently chatted with Mark Milastsivy, a serial entrepreneur and founder of Firstbase.io – Mark received an O-1A extraordinary ability visa in 2017, and Firstbase.io supports international entrepreneurs with incorporation and company setup. What a great conversation!
Your and your co-founder’s visa options will largely depend on:
- The ownership structure of your U.S. business
- How much will be invested to establish your U.S. business
- Your abilities and experience
- The success you and your company have achieved or are anticipated to achieve
- Who needs to come to the U.S. and what activities they will need to do while in the country
- Your timeframe
- Your ongoing international travel needs
Moreover, there are a couple of things to keep in mind:
- All work visas, which allow you and your co-founder to live and work temporarily in the United States, will require your startup or an agent to petition for you and your co-founder.
- Some work visas will require your startup to demonstrate that you and your co-founder are like any other employee at your startup, meaning that you are supervised by someone who also has the ability to fire you and your co-founder, and neither you nor your co-founder owns a controlling stake in the startup. This is known as an employer-employee relationship.
- You may be waiting several months before you can get to the United States. While the U.S. Embassy in Islamabad and the Consulate General in Karachi have resumed processing work visas and have the authority to waive visa interviews, they can only waive interviews if the visa candidate has previously applied for a visa. Currently, the wait time to get an interview is several months. (There are some consulates that still have multi-year wait times.)
Here are the work visas that my firm most often considers for startup founders:
The O-1A extraordinary ability visa is aimed at individuals who have achieved national or international acclaim and are at the top of their field. It’s the visa that Firstbase’s Milastsivy received. He recommends that international founders be “vocal about your story early on.” It’s helpful “to contribute content around your expertise” to various publications, he says. “Getting press that promotes you and your company and developing a personal brand is helpful.”
To qualify for an O-1A visa, your startup must be established in the United States and must demonstrate that an employer-employee relationship exists between you and the startup, or you must identify an alternative agent for sponsorship purposes. An individual must meet three out of eight criteria, some of which include:
- Winning a nationally or internationally recognized award, including venture capital funding.
- Employment in a critical capacity or an organization that has a distinguished reputation.
- Being featured in a major media or trade publications for your work in the field.
- Writing articles that have been published in professional journals or major media.
- Evidence you command a high salary or other compensation.
O-1A requirements are more stringent among the work visas, but it is the quickest visa to obtain, particularly if you pay the additional fee for premium processing. The O-1A allows for an initial stay of three years and unlimited extensions. The Biden administration recently made it easier for STEM engineers and founders to qualify for O-1As!
If you and your co-founder have been employed at your startup in Pakistan for at least one out of the last three years, your company could sponsor you for an L-1A visa for intracompany transferee managers and executives. You and your co-founder can come to the United States to establish an office here on an L-1A. The L-1A also offers a path to an EB-1C green card for multinational managers and executives.
Citizens of Pakistan are eligible for an E-2 visa for treaty investors thanks to the trade treaty between Pakistan and the U.S. To qualify, at least 50 percent of the owners of your startup must be Pakistani, and your startup must also make a substantial investment in the U.S. to create your startup. Employees who are Pakistani citizens are also eligible for an E-2. While the E-2 visa allows an initial stay of two years, as well as an unlimited number of renewals, an E-2 visa holder cannot stay in the U.S. indefinitely so you will need to demonstrate that you intend to return to Pakistan. If your and your co-founder’s combined ownership in the startup dips below 50 percent due to venture capital or other investments, you both may need to change to another visa.
International Entrepreneur Parole
While we wait for Congress to create a Startup Visa, International Entrepreneur Parole (IEP) offers international startup founders the next best thing. To qualify for IEP,
- Your startup must be a U.S. company founded in the last 5 years.
- You and your co-founder must each have at least a 10% ownership interest in the startup.
- Both you and your co-founder must be central and actively operate the startup.
- Your startup must have received at least $265k from qualified U.S. investors or at least $106k in government grants or show potential company growth and job creation.
Based on my firm’s experience, IEP takes more than a year to obtain.
The H-1B specialty occupation visa requires advance planning. The H-1B requires that your startup:
- Already be established in the U.S.
- Show an employer-employee relationship between the sponsoring company and the H-1B candidate.
- Demonstrate it has the ability to pay the prevailing wage to you and your co-founder.
- Consider that the digital H-1B lottery is held only once a year in March to determine who can apply for one of the 85,000 H-1B visas available, so the next lottery your startup could register you for would be in March 2023, and the earliest you could start working in the U.S. for your startup if your H-1B application would be Oct. 1, 2023.
The chances of getting an H-1B through the lottery process have dropped significantly during the past few years: USCIS received a record 483,927 registrations for the March 2022 lottery and 308,613 in March 2021!
For the H-1B lottery, your startup must register you and your co-founder in March 2023. If you and your co-founder are selected in the lottery, and USCIS approves your H-1B applications, the earliest you could start working for your startup in the U.S. would be Oct. 1, 2023.
There are also limited opportunities for cap-exempt (no lottery) H-1Bs, such as if your cofounder is CTO and has a Master’s degree or higher, you can consider the Global Talent Fellowship at Open Avenues.
As you can see, you have many options!
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear 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!
Also published on Medium.