Today we bring you another edition of “Dear Sophie,” an 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 live in India and run a startup. Most of our clients are based in the U.S. I also have a Delaware C Corp. established a year ago. We have three full-time contractors doing business development and sales. I currently have a B1/B2 visa. As my company continues to grow, we want to expand in the U.S. and possibly buy a house. I want to know what’s the best visa to obtain. Appreciate your opinion.
Intrigued in India
Dear Intrigued,
You are in good company! Lots of founders with growing businesses around the world are considering different pathways to come to the U.S. for a variety of reasons. You may be motivated to come here for venture capital, U.S. market access, the concentration of talent in Silicon Valley, personal growth or stability and opportunity for your family.
There are several U.S. immigration options to consider, including short-term visas and long-term green cards. In the next couple of years, you may seek various visas such as the L-1A as an executive transferring from one location of the company to another; or an O-1A visa as a founder of extraordinary ability in your field of business; or, as a worker in a specialty occupation. I’ve gone into those visa options in depth on Extra Crunch and in this podcast.
One thing I’d like to point out about the L-1A visa for managers and executives, as well as the L-1B visa for employees with specialized knowledge, is that there are many different types of relationships between the Delaware corporation and the Indian company that can qualify for U.S. visa purposes. For example, the Indian company could be the parent; or both companies could be owned wholly by you. However, if you plan to raise venture capital in the States, VCs will often require you to ensure that the Delaware corporation is the parent company and the Indian company is the subsidiary. This relationship qualifies for the L-1 visa.
It’s also important to start thinking about your long-term green card strategy now. Some non-immigrant visas are considered “dual-intent.” So, for example, it’s totally fine to start seeking an H-1B or L-1A visa after you’ve already begun the green card process. For other visa types that require non-immigrant intent, being somewhere in the green card process could be grounds for your visa to be denied. So it’s important to think strategically with an attorney about this before beginning any visa or green card process.
However, since you were born in India (and for people born in China), it’s important to consider your green card possibilities now; there are very long backlogs for green cards for individuals born in these countries. I’ve written for Extra Crunch about some strategies you can use to mitigate the wait. One trick to be aware of is that if your spouse was born in a country other than India, you can use your spouse’s country to determine your wait in line for a green card. This is called “cross-chargeability.” It can significantly speed up the process.
To use one of these options, you would either need to use your Delaware corporation as the sponsor, or for the EB-1A and EB-2 NIW green cards, you can self-petition. If the company is going to be the sponsor, it’s important to establish that it’s a real company, doing business, with the ability to pay you. Each of these immigration options require other qualifications for the company as well, such as a minimum salary you may need to be paid, other employees to handle any administrative functions, or various U.S. employees for you to supervise. But those details usually depend on the type of immigration category you’re using.
Another recent requirement is Buy American, Hire American, a regulation which has been in effect for the last couple of years. Under this regulation, it’s important to show how you’re creating jobs for U.S. workers and hiring them. Sounds like you’ve already been creating work for people in the U.S. in business development roles! You might consider hiring them as W-2 employees in the future.
As for the house, one interesting fact about U.S. immigration is that you actually don’t need to have any particular immigration status to become a property owner here. If you’re planning to purchase a home using a mortgage, then it’s important to obtain a work visa in the U.S. so you can obtain a Social Security number and establish credit here.
You’re doing extremely well. You’ve founded a company; you have a visitor visa; you have a DE corporation; and you’re clear on your goals about moving to the U.S. and having a home here. With some discussion and planning, you can absolutely settle on a strategy that’s right for you and your family. Relax, enjoy the unfolding, and have fun!
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.
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