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’m currently in the U.S. on a business visitor visa. I arrived here in early March just before the COVID-19 pandemic began here to scope out the U.S. market for expanding the startup I co-founded in Bolivia a few years ago.
I had only planned to stay a couple months, but got stuck. Now my company has some real opportunities to expand. How can I stay and start working?
— Satisfied in San Jose
Hey, Satisfied!
Appreciative for the jobs you’ll be creating in the U.S. since you desire to remain in the U.S. and expand your startup. The U.S. economy greatly benefits from entrepreneurs like you who come here to innovate. Since you’re already in the U.S., you may have options to change your status without departing.
If you were granted a stay of six months when you were admitted most recently with your B-1 visitor visa, you can seek an extension of status for another six months. There are additional alternatives we can explore that would allow you work authorization. For more details on some of the options I’ll discuss here and for additional visa and green card options for startup founders, check out my podcast on “What is U.S. Startup Founder Immigration? A Step-By-Step Guide for Beginners.”
Because most green cards (immigrant visas) take longer than nonimmigrant (temporary) visas, a conservative strategy to pursue would be to find another temporary nonimmigrant status (what is often nicknamed a “visa”) — rather than a green card, which takes longer — that will allow you to create and grow your startup in the U.S. without having to return to Bolivia.
Before I dive in, you should know that most visas require an employer sponsor — and oftentimes that sponsor must be a U.S.-based company. Many founders in this situation set up a U.S. parent company and make their startup abroad a subsidiary. I recommend you consult with an experienced immigration lawyer, who can not only help expedite your immigration case but also can refer you to a trusted startup lawyer as well. Check out my recent podcast about corporate law for internationally-founded startups. If the type of immigration status you are seeking requires an employer, it’s important to ensure everything is legally compliant before you submit your application or petition to USCIS.
The first option to consider is O-1A status for individuals with extraordinary ability. USCIS typically takes only a few weeks to a few months to process an O-1A application, depending on whether you seek premium processing. To qualify for the O-1A, you must demonstrate that you’ve already achieved national or international acclaim and have risen to the top of your field in the areas of science, education, business or athletics. (The O-1B visa is for individuals with extraordinary ability in the arts, motion pictures or television industry.) For more information on how to garner enough accomplishments to qualify, check out our Extraordinary Ability Bootcamp. Register and use code DEARSOPHIE for 20% off the enrollment fee.
The O-1A requires a U.S. employer sponsor, which means you would need to establish a U.S.-based company. If you’re seeking investment from U.S. institutional investors such as VCs, you might consider talking to your business attorney about making the U.S. company the parent company of your startup in Bolivia. Then that U.S. company would sponsor you for an O-1A visa. Your spouse and children could join you on an O-3 dependent visa. However, your spouse would not be eligible for a work permit.
Another option to consider is if you and your co-founders established your startup in Bolivia more than a year ago, and you’ve been an employee of your startup for at least one year, you might qualify for an L-1A visa for intracompany transferee managers and executives. U.S. Citizenship and Immigration Services (USCIS) only takes five weeks to two months to process L-1A visa applications. The L-1A is great for founders who have already created a startup abroad, have been working for the startup for at least one year and want to open a U.S. office for the startup. If you have a spouse or children, they will be able to join you in the U.S. under an L-2 dependent visa once U.S. embassies and consulates restart processing L-2 visas.
To apply for the L-1A, USCIS has historically looked for evidence that your startup is established in the U.S., such as having a physical location, or traction demonstrating that the business will generate enough revenue to support you and its ongoing operations within one year of the L-1A visa approval. If you’re approved as a startup, your L-1A status will typically be valid for just one year. Renewing your L-1A later, after your company is more established, you can seek a two-year period of status for a maximum duration of seven years.
Another benefit of the L-1A status is that for managers and executive intracompany transferees, it offers a path to a green card. If you decide you want to remain permanently in the U.S., you can later seek an EB-1C green card for multinational managers and executives through company sponsorship.
The third option is an E-2 visa for treaty investors, which USCIS typically takes two to four months to adjudicate, but is also eligible for premium processing. The E-2 is available to citizens of a country with an investment treaty with the U.S. who is making a substantial investment — usually at least $200,000 — to establish a U.S. office or startup. Citizens of Bolivia, among many other countries, are eligible for an E-2.
To qualify for an E-2, at least 50% of the ownership of the startup must be by citizens of the treaty country, in this case Bolivian citizens, and the startup must generate enough income to provide a living to you and your family in the U.S. — or at least do so within five years. And if any of your co-founders or employees abroad are also citizens of Bolivia, they are also eligible for an E-2 visa. If you’re not able to invest $200,000 of cash but you’re transferring valuable intellectual property or other assets, these may count as your investment as well. Some of the big benefits of the E-2 visa are that the spouse of the E-2 visa holder can get a work permit and the E-2 visa offers unlimited renewals.
Last but not least, your company might be able to qualify for a “cap-exempt H-1B” — which is an H-1B that’s available any time of year, without a lottery, if it meets the right regulatory requirements. If you can establish a strong employer-employee relationship, this is an option worth considering! There are foundations that support startups to create these opportunities.
Looking forward to hearing which path is right for you!
Best wishes,
Sophie
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. 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 here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!