Ask Sophie: Which visas will allow us to expand our startup in the US?

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.”

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Dear Sophie,

My co-founder and I launched a B2B SaaS startup in Poland a few years ago and are now looking to expand in the United States for market access since we have product market fit in a few countries in Europe.

We really need to be on the ground to interview our ideal users in the U.S. What visas will allow us to do that?

— Aiming for America

Dear Aiming,

Congrats on taking this next big step forward to grow your startup! I appreciate you reaching out for immigration guidance. Setting up your company in the United States is a valuable foundation to successfully sponsor you, your co-founder, and other prospective employees for visas or green cards, and it also makes investors feel more comfortable investing in your company. I recommend you consult both a startup corporate attorney in the state where you intend to locate your company and an immigration attorney to assist you in your efforts.

Matteo Daste, a corporate attorney, partner, and head of the Northern California Emerging Companies and Venture Capital practice at global law firm Mayer Brown, recommends that international founders spend some time on the ground in the U.S. to get a sense of the environment and opportunities before moving here. I recently chatted with Daste about the challenges international founders face in the U.S. He says he has seen an uptick in the number of international founders visiting the U.S. post-COVID-19 to kick the tires and launch their long-awaited expansion and immigration plans.

Come for a visit!

If you want to take Daste’s advice, you and your co-founder can get either a B-1 business visitor visa, which will enable you to stay for at least six months, or an ESTA (Electronic System for Travel Authorization) visa waiver, which enables citizens from 40 countries (including Poland) to stay for 90 days or less without first obtaining a visa. You must tell the U.S. Customs and Border Protection (CBP) officer when you arrive in the U.S. that you will be conducting business during your stay here. You should specifically request either a B-1 business visitor visa status or if on ESTA, WB (waiver-business) status. That can be really important!

Working while being a business visitor would violate your status and jeopardize your ability to live and work in the United States or even enter the U.S. in the future. However, some business activities, such as meeting with prospective investors or lawyers, negotiating contracts, participating in professional conferences, attending workshops or training programs, networking, and doing independent research are not considered employment and are acceptable in B-1 visa or ETSA WB status.

Set up your U.S. company

I typically see that most VCs prefer investing in a C corporation created in Delaware — a Delaware C corp. That’s primarily because Delaware laws protect investors and are very clear, and Delaware C corps can distribute two or more classes of stock and stock options to founders, employees, investors, and board members.

However, most investors prefer to invest in a parent company based in the United States, so you will likely need to consider setting up your U.S. company to own your company in Poland when you’re ready for a funding round. Then, you would do what’s called a “Delaware flip”: Your company in Poland becomes a subsidiary of your U.S.-based company. You should have your corporate attorney advise you on that, especially if you’ve already distributed shares in your startup in Poland.

O-1A vs. H-1B for international founders

If you want to work in the U.S. as a founder, I typically recommend that you focus your time, energy, and funds on pursuing an O-1A extraordinary ability visa rather than an H-1B specialty occupation visa. Generally, I find that international founders can easily qualify for the O-1A while growing and scaling their business, such as playing a critical role, securing funding, making contributions to your field, and generating widespread media attention and recognition for your company.

Meanwhile, the H-1B can be very difficult and cumbersome for founders of early-stage startups, from the H-1B lottery process (which determines whether you can even apply for an H-1B and only happens once a year in March), to the wage requirement (which does not consider equity or stock options), and the need to demonstrate to immigration officials your company’s ability to pay the required wage and business operations for at least three years.

Keep in mind that all work visas like the O-1A and the H-1B require a petitioner sponsor, typically an employer but for an O-1A potentially an agent. That means your startup must apply to U.S. Citizenship and Immigration Services (USCIS) for a work visa for you.

Another benefit of the O-1A is that your company can apply for one for you at any time of the year. So, if you happen to already be physically inside the United States in valid status and your U.S. company is set up, it can potentially petition you for a change of status to O-1A with 15-day premium processing.

(For now, 15-day premium processing means USCIS will either make a decision on your case or issue a request for evidence within 15 calendar days. The Department of Homeland Security, which oversees USCIS, recently proposed extending the premium processing times by changing them to business days from calendar days.)

L-1A visa is another option

Another option is the L-1A visa for an intracompany transferee executive or manager. If you’ve been employed at your startup in Poland for at least one year out of the last three years, your company could sponsor you for an L-1A visa. You can change your status when already inside the U.S. to an L-1A with 15-day premium processing to establish an office in the United States or you can apply for the L-1A directly from Poland and go through consular processing.

One of the benefits of the L-1A is that it offers a direct path to a green card — the EB-1C green card for a multinational executive or manager. However, L-1 visas are typically heavily scrutinized for business operations by U.S. Citizenship and Immigration Service (USCIS) officers, so many early-stage startups are receiving time-consuming requests for evidence. Talk to your immigration attorney about whether another visa might be less risky or easier to pursue.

Discuss your goals and options with your immigration attorney.

You’ve got this!

— Sophie

Dear Sophie,

Can you please share details on premium processing for international student work permits?

— Psyched Student

Dear Psyched,

Yes, there is great news for students! U.S. Citizenship and Immigration Services (USCIS) has expanded 30-day premium processing to employment authorization applications — both paper and online applications — for OPT and STEM OPT extensions for F-1 international students.

Starting on April 3, 2023, USCIS will accept 30-day premium processing applications for new employment authorization applications from F-1 students using the online Form I-907. USCIS is already accepting premium processing upgrades for currently pending work permit applications. Pre-Completion OPT, Post-Completion OPT, and the 24-Month Extension of OPT for STEM students are all eligible.

This is great for students and it will also allow U.S. employers to hire students or grads on F-1 Optional Practical Training (OPT) or two-year STEM OPT extensions more quickly!

All my best,

— Sophie

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