If you’re an international founder, legally establishing your new startup in the United States presents a challenge. Devising the best strategy requires knowing the immigration options available, consulting with an experienced attorney, and weighing the factors in your situation.
If you would like a strategy session about your immigration options, contact us at Alcorn Immigration Law whether you’re in Silicon Valley or on the other side of the world. We support immigration for innovation. And we stand ready to help you figure out the best strategy to enable you to live and work legally in the U.S. and create the life you dream of for yourself and your family.
Now, here are the Top 8 immigration options every international startup founder should know about.
8. B-1 Visa
If you’re an international entrepreneur who has already established your startup in an overseas office, and the startup company can continue to pay you through the foreign entity, you could come to the U.S. under a B-1 visitor for business visa.
Under a B-1 visa, you can perform temporary professional services, including meeting with investors, negotiating contracts, and securing office space. However, you cannot perform hands-on work nor receive payment from a U.S. source under a B-1 visa. Moreover, you must convince immigration officials that you intend to stay only temporarily in the U.S. and must not abandon your home abroad. The maximum stay in the U.S. under a B-1 visa is one year: Six months under the initial B-1 petition and another six months under an extension. This would give you the opportunity to establish an office in the U.S. for your startup before applying for another visa.
7. F-1 Visa with Optional Practical Training
Are you a startup founder willing to enroll in a master’s or higher degree program?
An F-1 visa would enable you to enter the U.S. as a full-time student at an accredited college or university. After completing full-time coursework in your first academic year, you may apply for Optional Practical Training (OPT) in your field of study either while attending school or after graduation. Under OPT, you can create and work at your own startup.
If you are approved for a post-graduation OPT and graduate with a science, technology, engineering, or mathematics (STEM) degree, you are eligible to apply for a 24-month STEM OPT Extension. If you want to continue working at your startup during STEM OPT, consult an experienced immigration attorney to ensure this is possible and that your company is in compliance with U.S. immigration law.
6. H-1B Visa
Getting one of the highly coveted H-1B visas in the annual lottery is difficult. For the last several years, the number of H-1B petitions has far exceeded the 85,000 available each year.
An H-1B visa enables you to do work only for the company that filed the H-1B petition on your behalf. You are allowed to incorporate your startup if you are on an H-1B visa. However, if you want to retain your H-1B status, you cannot work for your startup—even if the work is unpaid. You may participate in limited, non-employment activities of your startup as an investor or owner. To work for your startup, your startup would need to sponsor you for an H-1B visa.
Click here for other things to consider when taking this route. If your startup venture becomes successful, you will have more options to grow it and stay in the U.S.
5. EB-1A Green Card
The eligibility requirements for an EB-1A green card are rigorous. You must demonstrate and document that you have “extraordinary ability” in the sciences, arts, education, business, or athletics.
However, if you qualify for an EB-1A, you may submit a petition yourself. In other words, you may self-petition. That means you do not need an employer or institution sponsor to apply on your behalf as most other visas require. That also means neither a job offer nor labor certification is required.
Labor certification requires a U.S. employer to prove to the U.S. Department of Labor that no minimally qualified U.S. workers are available for the position sought by the foreign employee. The labor certification process is designed to ensure that the employment of U.S. workers and the wages and working conditions of U.S. workers employed in the same field are not adversely affected.
4. EB-2 NIW
An NIW eliminates the need to embark on the lengthy and expensive process of getting a labor certification. As with the EB-1A green card, international entrepreneurs who qualify for an EB-2 NIW may self-petition.
More than a dozen universities in the U.S. offer entrepreneur-in-residence programs. These programs enable immigrant entrepreneurs to get an H-1B visa to mentor business students while building their companies in the U.S. These H-1B visas are not subject to the H-1B lottery.
Recently, I joined Global EIR’s legal advisory committee. A nonprofit network of entrepreneurs, investors, and universities, Global EIR (Entrepreneur-In-Residence) connects international founders with universities, mentors, investors, or cities. Currently, San Jose State University, a Global EIR partner, is seeking immigrant entrepreneurs to start or grow their startups in Silicon Valley.
2. L-1A Visa
An L-1A visa may work for you if you’ve already established your startup abroad, you’ve been working at the startup for at least a year, and you could open an office in the U.S.
An L-1A visa allows either a U.S. employer to transfer an executive or manager from a foreign office to an office in the U.S. or a non-U.S. employer to transfer an executive to the U.S. to open an office. In both these instances, the executive or manager must have worked for the company for at least one year.
If the U.S. company has been operating for less than one year when the L-1A petition is approved, the L-1A visa will expire in one year. At the end of that year, you must petition for an extension, which is good for two years. The maximum stay in the U.S. under L-1A status is seven years. After your U.S. company has been in business for at least a year, it can sponsor you for an EB-1C green card.
1. International Entrepreneur Rule
Unlike several other countries, the U.S. does not yet have a visa for immigrant entrepreneurs who start a company that creates jobs. When Congress failed to create a startup visa, the Obama administration created a substitute through an Executive Order: the International Entrepreneur Rule.
The International Entrepreneur Rule gives U.S. Citizenship and Immigration Services (USCIS) the discretion to grant parole—or a temporary stay in the U.S.—to qualifying immigrant entrepreneurs. Immigrant entrepreneurs must show they have created successful startups that have the potential for business growth, jobs, and innovation.
Before President Obama left office, the rule was set to go into effect on July 17, 2017. However, the Trump administration put the rule up for review. No word yet on the International Entrepreneur Rule, but I remain optimistic it will become a reality. President Trump has expressed his support for merit-based immigration, which this rule promotes.
Interested in a Strategy Session?
The Alcorn Immigration Law team enjoys the challenge of customizing immigration strategies that enable international entrepreneurs to achieve their personal and professional goals. If you would like a strategy session about your options, contact us at Alcorn Immigration Law. We can help whether you’re in Silicon Valley or on the other side of the world. We support immigration for innovation. And we’re eager to help you determine the best strategy to enable you to live and work legally in the U.S. to build your dreams.
On the Alcorn Immigration Law blog, I frequently discuss immigration strategies, as well as changes that will impact immigration. Check it out here.