For Founders

Which US Visa Is Best For International Startup Founders?

With immigration in particular, many founders will immediately jump to a conclusion to obtain a specific visa without strategizing which option will give them the most freedom in the shortest time. Before jumping to any premature conclusions and engaging just any immigration law firm to execute a non-optimal strategy, we’ve put together this guide to provide an overview of how to most effectively get permission to legally run your startup in the US.

20
 min read
Published: 
April 4, 2022
NAVIGATION
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Note: If you’re an early-stage founder anywhere from pre-idea through pre-seed, consider applying to On Deck Founders

Note: This article is adapted from a live discussion for the On Deck community featuring On Deck alums Ming Lu and Vik Duggal. If you’re an early-stage founder, angel investor, or exec interested in joining our community, consider applying to one of our programs - you’ll be in great company.

Note: If you’re an early-stage founder anywhere from pre-idea through pre-seed, consider applying to On Deck Founders.

Note: This article is adapted from a live discussion for the On Deck community featuring Josefin Graebe. If you’re an early-stage founder, scaling founder, or senior exec interested in joining our community, consider applying to one of our programs.

There are several types of visas available, depending on your situation and your goals. 

Before we get into each visa type, you have to be clear on what you are trying to accomplish by moving to the US.

Ask yourself: Do you… 

  • Intend to come to the U.S. for a short time to test the waters for your startup?
  • Have a startup that has already received venture capital funding or government grants?
  • Want to remain in the U.S. for the long haul to scale your startup and possibly start other ventures? 
  • Need to work on multiple projects including advising additional startups for equity?
  • Want to stay long enough to establish a foothold for your startup in the U.S. and then return to your home country? 

Each of these lead to very different recommendations. As you go through this guide, keep in mind which of these common situations is most relevant to you.

What does the US visa process look like for startup founders?

Here’s a bird’s eye view of the visa application process. 

Note that this is deliberately oversimplified and missing a lot of variables! It’s just here to help you wrap your head around the high level process:

This gets really nuanced once you get into the specifics of your situation. For example, are you already in the US, and are sponsored by another employer? Are you starting your visa journey from abroad?

Let’s now dive deeper into your visa options.

For the purposes of this guide, we’ll group your visa options based on how long you want to stay in the US.

Ways to Visit the U.S.

The most common way to visit the U.S. is with a B-1/B-2 visitor visa.  B-1 status is for business visitors, and B-2 status is for tourists.  Most B-1/B-2 visas are valid for up to 10 years and allow multiple entries, during which you can usually stay for up to 6 months at a time.  You’re also allowed to apply to extend your stay or change to another nonimmigrant category after you arrive.

There’s another version called ESTA, which is the visa waiver program, and it’s available for people from certain countries. You apply online and there’s no interview, and you can stay for up to 90 days at a time. If you enter on ESTA you cannot extend your stay or change your status on your trip.

You’re not allowed to be employed in the U.S. on either the B-1/B-2 or ESTA.  Be sure you don’t get paid for any labor in the U.S. by a U.S. company when you are here.  If you’re present as a business visitor, you are allowed to engage in business meetings such as pitching investors, and you can engage in certain other business activities such as conducting market research and attending conferences.

Visas for Short-Term Work in the U.S.

If your goal is to get your startup up and running in the US temporarily, then you’re looking at nonimmigrant visas. These are based on your intention to come to the U.S. temporarily. Some allow you to intend to one day stay permanently with a green card, and others do not.

Here are the options founders use the most in alphabetical order:

What are the E-1 and E-2 Visas for Treaty Investors?

The E-1 visa and the E-2 visa are available for startup founders and professionals whose home country has a treaty of commerce and navigation with the U.S. The U.S. Department of State maintains a list of treaty countries and whether they are eligible for the E-1 visa, the E-2 visa, or both. While Taiwan is a treaty country, China is not. Neither is India. Rest assured, a solution exists for citizens of non-treaty countries who want to get an E-2 visa.

The biggest differences between the E-1 and the E-2 is that:

  • The E-1 visa requires a history of trade between the U.S. company and the company in the home country.
  • The E-1 visa does not require a financial investment in a U.S. business.
  • The E-2 visa requires investment of capital (cash, IP, machinery, etc.) into the U.S. business.
  • The E-2 visa does not require trade between the treaty country and the U.S.

To qualify for an E-1 visa for treaty traders:

  • The founder must be a citizen of a treaty country
  • The founder must also be looking to work as a founder, trader, or employee in a U.S. startup where at least half of the company’s ownership shares their same nationality
  • The company must engage in “substantial trade,” meaning sizable and frequent international transactions between the U.S. and the home country.

To qualify for an E-2 visa:

  • The founder must be a citizen of a treaty country
  • There must be a substantial investment in a U.S. startup.
  • The investment must be subject to partial or total loss if the business fails.
  • The founder must be positioned to develop and direct the business or be an essential employee.
  • The U.S. startup must be majority-owned by an individual or individuals who are citizens of the same treaty country as the founder.
  • The business should be able to generate more than enough income to provide a living for the E-2 beneficiary and her/his family and to create well-paying jobs and reinvest to future growth.

E-2 visa holders need to remember that equity financing rounds, or a co-founder getting a green card, may dilute the majority ownership of the business by a certain nationality.  This can potentially jeopardize E-2 visa status down the road, so you need to plan carefully in advance if you’re raising funding and if ownership shared by nationals of your country will dilute below 50%.

For more details on E-2 visas for founders and employees, check out the “Immigration Law for Tech Startups” podcast on the E-2 visa for founders, and this Dear Sophie column.

What is the H-1B Specialty Occupation Visa?

The H-1B visa requires special planning and timing because usually only up to 85,000 new visas are given out each year. Since the demand for H-1Bs far exceeds the supply, USCIS holds a digital lottery every March to determine who can apply for a cap-subject H-1B. To participate in the lottery, the H-1B candidate must be registered online by the sponsoring startup during the registration window and pay the $10 fee.

Having your startup sponsor you for an H-1B can be tricky given that you can only apply once a year and your startup must demonstrate a valid employer-employee relationship. That often means you cannot be a majority owner in your startup, somebody else must have the right to hire, supervise, reward, and potentially fire the founder on H-1B. This supervisor can be the CEO co-founder, another executive, or your company’s board of directors, for example.

If you’re selected in the lottery, your startup will usually have until June 30 to prepare an H-1B petition on your behalf. You can renew your H-1B status beyond six years if you reach certain stages of the green card process before the end of your fifth year on the H-1B. Your dependent spouse can join you but usually won’t have work authorization for the first several years.

The American Competitiveness in the 21st Century Act—or AC21—gives international talent in certain situations the flexibility to change jobs (such as creating another startup) and keep your green card going while on H-1B. If USCIS has already approved a green card I-140 petition that your prior employer filed on your behalf, then your startup has the ability to extend your H-1B status beyond the typical six-year limit. Also, if your I-485 adjustment of status application has been pending for at least 180 days and your new job is the same or similar to your sponsored job, then your new startup can take over the green card process.

Plan B for H-1B: The cap-exempt H-1B

A backup plan if you need an H-1B and weren’t selected in the lottery to consider a cap-exempt H-1B. Cap-exempt employers by law qualify to petition for an H-1B visa at any time without going through the lottery and are not subject to the annual H-1B cap of 85,000 visas. They include:

  • Institutions of higher education
  • Nonprofits tied to institutions of higher education
  • Nonprofit research organizations
  • Government research organizations

If a founder or any professional can get a part-time H-1B visa through one of these cap-exempt employers, the startup can concurrently sponsor the founder or professional for an H-1B without going through the lottery. One innovative organization, Open Avenues Foundation, offers a fellowship program that enables international talent to receive a cap-exempt H-1B by leading university students for about five hours a week in real-world, project-based work within their field of expertise. The candidate gets to stay in (or come to) the U.S., the startup gets a team of students working on a group project that benefits your company and increases diversity in your hiring pipeline, and U.S. students get the benefit of hands-on high-quality STEM learning.

Once your candidate’s first cap-exempt H-1B is in place, your startup can petition for a second, concurrent cap-exempt H-1B for direct startup employment.

What is the L-1A Visa for Intracompany Transferees?

The L-1A visa is for managers and executives who are transferring to the U.S. from a company abroad. 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. 

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. If you’re approved as an established company, your L-1A status will be valid for up to three years.  Later you can renew your L-1A in two year-increments for a maximum of seven years total.

Another benefit of the L-1A status is that it offers a direct path to a green card. If you decide you want to remain permanently in the U.S., you can seek an EB-1C green card for multinational managers and executives through company sponsorship. More about that is below.

What is the O-1A Visa for Extraordinary Ability?

Overall, the requirements for the O-1A visa are more stringent than those for the H-1B, but the O-1A has no annual cap. Like the H-1B, the O-1A visa petition will need to demonstrate that your startup and you have an employer-employee relationship, or you will need an agent to file on your behalf.  An O-1A can be set up with an itinerary of services to allow you the flexibility to engage in multiple gigs during your time in the U.S. including advising additional startups for equity on the side.

To qualify for an O-1A visa, you must have achieved national or international acclaim and be at the top of your of their field by meeting three of eight criteria (many of which are similar to the criteria for the EB-1A green card, more on that below):

  1. Winning a nationally or internationally recognized award for excellence.
  2. Membership in associations that require outstanding achievements of their members and/or an invitation or nomination to join.
  3. Being featured in a major trade or major media for your work in your field.
  4. Participating on a panel or individually in judging the work of others in your field.
  5. Original scientific, scholarly, or business-related contribution of major significance to the field.
  6. Authoring scholarly articles in professional journals or major media.
  7. Having been previously employed in a critical or essential capacity for an organization with a distinguished reputation.
  8. Have or will have a high salary or other compensation.

For more information on the O-1A visa, as well as the EB-1A green card for individuals with extraordinary ability and the EB-2 NIW (National Interest Waiver) green cards for individuals with exceptional ability, listen to this podcast on the extraordinary ability trio of visas.

For even more guidance, register for the Extraordinary Ability Bootcamp, a 15-module course that guides you in assessing whether you qualify for either of these green cards or the O-1A nonimmigrant visa—and what you need to do to get there; use promotion code ONDECK for 50% off the enrollment fee.

What is International Entrepreneur Parole?

Up to three co-founders of a startup can self-petition for International Entrepreneur Parole (IEP), which means they don’t need an employer sponsor. To qualify for IEP for an initial 30-month period, founders must demonstrate:

  • The startup is a U.S. corporation that is less than five years old.
  • They have at least a 10% ownership stake in the startup and the founder is central to and plays an active role in the startup.
  • The startup has received at least $264,147 from qualified U.S. investors or at least $105,659 in grants or awards from federal, state, or local governments.
  • The startup’s qualifying U.S. investors have aggregate investments in start-up entities of no less than $633,952 over five years and that at least two of those entities have each created five jobs or generated at least $528,293 in revenue with annualized revenue growth of at least 20%.

These investment, grant, and revenue minimums are adjusted every three years based on the Consumer Price Index for All Urban Consumers, or CPI-U. The last time they were adjusted was on Oct. 1, 2021. That’s why they’re weird numbers!

If USCIS approves your IEP application, you will receive a parole document that is valid for 30 months, supports multiple entries, and can be extended once for another 30 months if you and your startup meet the extension criteria. However, USCIS approval alone does not grant you entrepreneur parole and entry into the U.S. A U.S. Customs and Border Patrol (CBP) officer at an airport or other U.S. port of entry will have the final say on whether you and your family are granted parole and for how long. 

Unfortunately, there is no equivalent of a “change of status” for founders already physically present in the U.S.  That means if you and your family are in the U.S., you must first leave the U.S. and then show your parole documents to the CBP officer upon reentering the U.S. The CBP officer will stamp your passport with your parole expiration date.  

To renew parole beyond the initial 30 months for another 30 months, you will have to meet the IEP extension requirements and file a new Entrepreneur Parole application to show:

  • You continue to play a central and active role with the company.
  • You have at least a 5% ownership stake.

And one of the following:

  • Your startup has received at least $500,000 from qualified investments and/or qualified government grants or awards.
  • Your startup has created at least five full-time jobs with the startup entity during the initial parole period.
  • Your startup has at least $500,000 in annual revenue in the United States and averaged 20% in annual revenue growth during the initial parole period.

If a startup entity partially meets the funding, job creation, or annual revenue criteria, a founder must provide compelling evidence that the startup entity continues to show substantial potential for rapid growth and job creation.

My podcast episode on IEP goes over the process for applying and answers some of the most frequently asked questions.

Here’s a recap of what we’ve just covered:

Check out this TechCrunch Dear Sophie column, “Which immigration options allow me to launch my own startup?” in which I talk in more detail about some of these visa options.

Now, let’s talk about your options for permanent residence if you’re looking to live and work in the U.S. longer.

Green Cards for Founders to Stay Long-Term

The previous section discussed nonimmigrant visas: pathways to residing in the US for a temporary period.

Founders who are looking to stay permanently in the United States need green cards, aka “permanent residence” or “immigrant visas.”  We typically recommend the following employment-based green cards for startup founders because they are typically the fastest options. Most founders pursue the EB-1A or the EB-2 NIW on their own by self-petitioning, but your startup can sponsor them as well. 

The EB-1A green card is for individuals with extraordinary ability in the sciences, arts, education, business, or athletics. It is typically the quickest employment-based green card and the bar for qualifying is high. Prospective beneficiaries of the EB-1A must meet at least three of the following criteria, similar to the O-1A:

  1. Received a nationally or internationally recognized prize or award
  2. Exclusive membership in organizations (usually, invitation-only memberships)
  3. Been profiled in a professional or trade publication or major media
  4. Have judged the work of others
  5. Made major contributions to the fields of science, education, art, business, or sports
  6. Written articles that have been published
  7. Work has been displayed or showcased
  8. Play a leading role in a distinguished organization
  9. Command a high salary or compensation
  10. Have commercial success

The EB-1B green card is for an outstanding professor or researcher. To demonstrate you are an outstanding professor or researcher, you must meet at least two of the six listed criteria below—or comparable evidence if any of the criteria do not readily apply:

  1. Major prizes or awards for outstanding achievement
  2. Membership in associations that require members to demonstrate outstanding achievement
  3. Published material in professional publications written by others about your work in the academic field
  4. Judge (individually or on a panel) the work of others in your same or allied academic field
  5. Original scientific or scholarly research contributions in your field
  6. Authorship of scholarly books or articles (in scholarly journals with international circulation) in your field

The EB-1C green card, which requires an employer sponsor, is for a multinational executive or manager to come to the U.S. to live and work. The qualifications are very similar to the L-1A nonimmigrant visa described above. To qualify for an EB-1C:

  • The EB-1C candidate must have been employed outside the U.S. for at least one of the three years as an executive for the employer
  • If the EB-1C candidate is already working in the U.S., she/he must have been employed outside of the U.S. and has worked for at least one of the three years before transferring to the U.S. as an executive or manager for the employer
  • The prospective U.S. employer is the same company that employed the candidate abroad and has been doing business for at least one year in the U.S.
  • The candidate will be employed in the U.S. as an executive.

The EB-2 NIW (National Interest Waiver) Green Card is for individuals with exceptional ability in the sciences, arts, or business. For an EB-2 NIW, you must have an advanced degree or exceptional ability and show that your work or skills are in the interest of the U.S.

 To meet the advanced degree prong, you must have either:

  • A bachelor’s degree with at least five years of experience in your field
  • A master’s or higher degree

Or, to meet the exceptional ability prong, you must have any three of the following:

  • 10 years of experience in your field
  • a license or certification
  • high salary
  • exclusive membership in professional organizations
  • exceptional abilities and achievements

And, to meet the national interest requirement, you must show that your work and skills:

  • Have substantial merit or national importance
  • Will advance your field
  • Will benefit the United States, such as creating jobs or substantially contributing to the economy

Check out these tips for filing for an EB-1A or EB-2 NIW—or filing for both concurrently to hedge your bets. For even more guidance, register for the Extraordinary Ability Bootcamp, a 15-module course that guides you in assessing whether you qualify for either of these green cards or the O-1A nonimmigrant visa—and what you need to do to get there; use promotion code ONDECK for 50% off the enrollment fee.

Can international startup founders bring their families with them to the US?

Yes, all of the visas, green cards, and even IEP allow their main beneficiaries (that would be you!) to bring their spouse and children under the age of 21 (dependents) with them. 

Some visa categories such as the L-1 and E-2 and even IEP allow spouses employment authorization to get a job at a company or start a company of their own. Keep in mind that if applicable, the Application for Employment Authorization can only be filed when inside the U.S.

Why Everybody Needs an Immigration Lawyer

Applying for visas and filing petitions can seem straightforward -- after all, it’s just filling out the appropriate forms and making sure you have the right documents, right?

However, many individuals find they need help from a legal professional after going it alone and running into problems or getting denied. And when the situation is critical, especially for startup founders with hundreds of thousands or millions of dollars of investors’ money on the line, an immigration attorney can help keep you safe by:

  • Devising a strategy and backup plan based on your long-term goals for yourself or your startup
  • Guiding you through the process
  • Presenting a strong and compelling visa petition
  • Making sure your visa remains valid
  • Answering your questions along the way
  • Helping to try to speed things up if the government is slow
  • Pivoting the strategy based on new circumstances that may arise
  • Preparing you for an interview or discussion with immigration officials
  • Accompanying you to your in-person interview with a USCIS officer
  • Ensuring you get your documents in a timely manner

An immigration attorney can also help your startup:

  • Establish an immigration policy
  • Use immigration as an incentive to attract and retain international talent
  • Prepare for Form I-9 inspections for your employees’ paperwork

If you need help figuring out what to ask prospective immigration attorneys before you hire them, take a look at 64 Questions to Ask Your Immigration Attorney, which the Alcorn team created to guide startup founders, professionals, and others in asking the right questions.

Navigating the U.S. Immigration System

Although the United States’ complicated immigration system makes it extremely difficult for international founders and professionals—and their families—to realize their dreams to live and work in the United States, we hope this guide helps demystify one of the first hurdles of your startup journey! 

Remember, everything is possible. Just start by assessing what you want and getting the right guide to support you.

About the Author

Sophie Alcorn is the founder of Alcorn Immigration Law and certified as a specialist attorney in immigration and nationality law by the State Bar of California Board of Legal Specialization. She enjoys devising innovative strategies and creative solutions that enable international entrepreneurs and professionals in the tech industry to create companies, jobs, and innovations in the United States—with their families by their side. Sophie provided input on legislation introduced by Congresswoman Zoe Lofgren in July 2021 that creates a startup visa and startup green card for founders and critical employees. She shares her expertise in her weekly immigration column for TechCrunch and through her weekly podcast, “Immigration Law for Tech Startups.”

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