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 have some amazing former colleagues (who are also my friends) back home in Guatemala. I have a green card now, was recently laid off from my job, and am founding a startup through an accelerator program.
I know all of these amazing people in Guatemala with whom I would love to work. How can I set things up so that some of them could join me in the U.S. one day? If they are my friends, is that even allowed? I don’t want to cross any lines!
— Go-Getter from Guatemala
Dear Go-Getter:
Thank you for your questions! It’s so exciting to hear that you’re taking the leap and using this time of unemployment to launch a new company. That takes courage. Congratulations.
There’s no rule that prevents you from hiring people who you happen to be friends with, but unfortunately there’s no immigration category for friends, either!
Since you’re starting up, bringing them to the U.S. might be a medium-term goal for after you incorporate and raise some funding. At that point, you could create a wholly owned subsidiary of your U.S. company in Guatemala. There are several service providers that support such a process, such as UnaTerra. (I do not receive any compensation from them; they have supported my clients in the past.)
Once you set up the subsidiary, you can employ these individuals there on payroll as full-time employees, ideally in executive, managerial or “specialized knowledge” roles. After they work at the Guatemalan subsidiary for at least one year, the U.S. parent startup could sponsor them for L-1 visas for intracompany transferees. There are two types of L-1 visas: The L-1A Visa for Intracompany Transferee Managers and Executives and the L-1B Visa for Intracompany Transferee Specialized Knowledge Workers.
There are several benefits to the L-1 visa:
- OK to bring spouse and kids
- Spouses can get work permits
- Can be issued in unlimited quantity (there is no lottery)
- Any amount of formal education qualifies (no minimum)
- These types of visas are politically safe
- You don’t have to be famous
- Available to everybody in the world regardless of country of birth and citizenship
- Available year-round
When your startup petitions an employee abroad for an L-1 visa, it’s helpful to already have a U.S. office. For a company that’s been doing business for less than one year in the U.S., somebody can seek an L visa for “startup” purposes, in which it’s important to demonstrate legally in the petition that this “new” office will support the executive or manager within one year of L-1A approval. If you didn’t already have a U.S. company and somebody were coming here to bring the company from Guatemala to the U.S., an executive or someone else from your company could come to the U.S. on a B-1 visitor visa for business to scout locations and sign a lease. If the executive establishes a new office in the U.S. for your company, the L-1A is initially valid for one year.
For executives or managers who are transferred to an already established U.S. office like your startup will be, the L-1A is initially valid for three years. Usually L-1As can be extended every two years after the initial period for up to seven years total. If your company wishes to have the executive or manager remain in the U.S. longer, the L-1A visa offers a path to the EB-1C green card for multinational managers and executives.
The L-1 is a dual-intent visa, which means it’s fine to simultaneously pursue permanent residence in the U.S. The EB-1C green card also requires a U.S. employer to sponsor the candidate. Your U.S. startup must be in business in the U.S. for at least one year before it can sponsor an employee for an EB-1C petition. Keep in mind that one of the requirements for an EB-1C is the same as the L-1A: Namely, that the EB-1C candidate must have worked for the company outside of the U.S. at least one year in the last three years.
The EB-1C green card requires a relatively short wait for individuals from China and India compared to other employment-based green cards. For Guatemala and most other countries, there is no difference in the wait time. Another advantage of EB-1C over EB-2 or EB-3 is that it does not require PERM. However, it is also not eligible for Premium Processing.
It’s good to start a green card soon after arrival. If the executive or manager does not receive the green card before the seventh year of the L-1A, the L-1A visa holder must either file for an extension or leave the U.S. and wait for a green card in her or his home country. An L-1A visa holder can file an extension by “recapturing” unused time in the U.S. Days spent outside the U.S. for work or vacation can be “recaptured” and added back to the total maximum period of stay.
After the U.S. operation has been up and running for at least one year, the company could sponsor executives abroad for an EB-1C green card directly without first applying for an L-1A visa.
Your startup will also be able to sponsor other employees for an L-1B visas for specialized knowledge positions in the U.S. In addition to working abroad for the sponsoring company for at least one continuous year in Guatemala, the L-1B candidate must have specialized knowledge of your company’s product, service or research, which makes that employee essential to the company’s success in the U.S.
L-1B visa holders can stay in the U.S. for up to five years: The initial visa allows for a three-year stay. The L-1B can be extended once for two more years. If the company wants to sponsor the individual for a green card, there are a few options, including:
- EB-2 green card for an individual with exceptional ability or a master’s or higher degree or a bachelor’s degree and at least five years of work experience
- EB-3 green card for an individual with a bachelor’s degree or equivalent
The EB-2 and EB-3 green cards require the sponsoring company to go through the PERM labor certification process. Before the sponsoring company can receive an approved labor certification, it must test the labor market and show that no qualified and willing U.S. citizen or permanent resident is available for the position.
If your company starts using the L-1 to transfer employees to the U.S. on a regular basis, consider filing a Blanket L petition. A Blanket L petition is a group petition for your employees to apply directly for their L-1 visas at consulates without first waiting for USCIS to approve an individual L petition. It is initially valid for three years, but afterward if no issues arise, it will be valid indefinitely.
Remember, U.S. Citizenship and Immigration Services continues to process immigration petitions and applications. However, your employees will not be able to get a visa or green card or travel to the U.S. until the embassy and consulates in Guatemala reopen for routine visa and green card processing and travel restrictions are lifted. That should be fine as they will need to work a year in Guatemala first.
As always, I recommend consulting an experienced immigration attorney to help you assess all the options based on your company’s goals and timing.
Wishing you and your colleagues every success!
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!