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.”
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Dear Sophie,
I lived and worked in the United States on an L-1B for a year, and then changed to an H-1B for 2.5 years before I moved back to India (where I’m a citizen) and founded a startup.
Now I want to return to the U.S. to raise funds for my startup. What are my options for returning to the U.S. as a founder?
— Fast-Moving Founder
Dear Fast-Moving,
Congratulations on launching your own venture and making the move to jump back to the States to expand your startup and secure investors! I recommend working with an immigration attorney to determine the best options based on your long-term goals, as well as a corporate attorney to discuss the best structure for your startup’s U.S. entity to make it attractive to investors. Most U.S. investors prefer to invest in a parent company based in the U.S. that’s a Delaware C corporation.
Depending on which non-immigrant visa you pursue, you may be able to avoid having to go through an in-person consular interview through the end of this year since you went through the interview process for your L-1B intracompany transferee specialized knowledge worker visa. The U.S. Department of State extended the visa interview waiver program until the end of this year. Consular officers have the discretion to waive the visa interview requirement for certain work visas like the O-1A and H-1B if the beneficiary was previously issued a visa and has never been refused one. Unfortunately, the interview cannot be waived for the L-1 visa.
You have a few visa options to return to the U.S. as a founder, so let’s dive in!
B-1 visa
If you want to set up your startup’s U.S. entity, find office space or meet with prospective investors, you can do that on a B-1 visitor visa for business. The B-1 will enable you to enter the U.S. and stay for up to six months. However, you cannot do any work while on a B-1. Your immigration attorney can tell you what activities are allowed.
When you arrive in the U.S., be prepared that the U.S. Customs and Border Protection officer at the airport may ask you what business activities you intend to do during your stay.
While you’re in the U.S. on a B-1 you can change your status to one of the visas below without leaving the U.S.
L-1A visa
The L-1A visa for an intracompany transferee manager or executive is a fantastic option for founders like you who already have an operating startup outside of the U.S. and want to come to the U.S. to open an office and raise funds. My colleague Nadia Zaidi and I recently chatted about the benefits of the L-1 visa category.
Your startup must petition for an L-1A on your behalf. If you are coming to open an office in the U.S., you will need to show that you have already secured office space in the U.S. and that the U.S. business will support your position within one year of the L-1A visa being approved. U.S. Citizenship and Immigration Services (USCIS) is far more likely to approve a petition for a company that has a physical office, which it considers to be a sign that your company is serious. We’ve been successful in getting L-1 approvals for companies situated in a coworking space, but it can help to have some dedicated rooms within it.
It’s also helpful to set up a U.S. bank account for your company and usually to have at least $100,000 in the account.
For the L-1A visa application, you will need to submit a business plan, growth models and an organizational chart. The L-1A allows for a maximum stay of seven years: three years initially followed by two renewals of two years each. If you’re setting up a new office in the U.S. and are approved for an L-1A, it will be valid initially for only one year. To extend the L-1A for three years, you will need to show your U.S. business has met your growth models and is viable.
With an L-1A, your spouse and children can come with you to the U.S., and your spouse is eligible to apply for a work permit. The L-1A is a dual intent visa, which means it’s very easy to apply for a green card while you’re an L-1A visa holder. The L-1A offers a direct path to an EB-1C green card for a multinational executive or manager.
O-1A visa
If for whatever reason the L-1A is not an option for you or if you decide not to pursue an EB-1C green card and need to find another visa option when your L-1A expires, consider the O-1A extraordinary ability visa. We’ve had considerable success getting O-1As for our startup founder clients, but you should be aware that the eligibility criteria for this visa are the most stringent of all the work visas.
Also, you would need to establish your company in the U.S. and your U.S. company or a qualified agent would need to sponsor you or the O-1A. The O-1A allows for an initial stay of three years and may be extended in one-year increments. You can bring your spouse and children with you to the U.S. However, your spouse will not be eligible to get a work permit as your dependent. Many families wait until the green card stage to obtain an employment authorization for the dependent spouse.
You must meet at least three of eight criteria if you don’t have an internationally recognized award, such as a Nobel Prize or Fields Medal. Check out this Dear Sophie column in which I describe how to qualify for each O-1A criteria.
The O-1A criteria overlap significantly with the criteria for the EB-1A extraordinary ability green card, which makes that green card an easy reach for O-1A recipients.
H-1B visa
If you got your H-1B by going through the lottery process, you do not need to go through the lottery process again since you were on the H-1B visa for less than the six-year maximum. Still, the H-1B can feel restrictive for founders — particularly those who also serve as the CEO of their startup. This year, new regulations might make it easier for founders to qualify for H-1B.
Your startup would need to establish itself in the U.S. As with the O-1A, the H-1B requires your U.S. company to demonstrate that an employer-employee relationship exists.
Assuming this will be your startup’s first H-1B, your startup must get its Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification. Then your company would have to file a Labor Condition Application (LCA) to the Labor Department for approval before submitting an H-1B petition on your behalf to USCIS. For the LCA, your startup must promise to pay at least the prevailing wage to you based on your position and location and ensure that your employment conditions won’t negatively affect other workers.
Keep in mind that equity in your company and stock options do not count as wages. Your startup must also have enough money in its U.S. bank account to pay your salary for at least three years and cover business operations.
Regardless of the path you choose, good luck on your fundraising journey in the U.S.!
— Sophie
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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. “Dear Sophie” is a federally-registered trademark. You can contact Sophie directly at Alcorn Immigration Law.
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