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Dear Sophie: Can founders get visas in 2021 through DACA or other means?

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Sophie Alcorn
Image Credits: Sophie Alcorn

Sophie Alcorn

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Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.

More posts from Sophie Alcorn

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:

Does the United States have a startup visa? If not, what are the best visas for startup founders?

If my friend is a Dreamer in the U.S. who is undocumented but wants to found a startup, is it possible?

—Cheerful in Chile

Hello Cheerful!

Much to be cheerful about for your friend today as DACA is back! DACA is “Deferred Action for Childhood Arrivals” and it provides work permits for people who were brought to the U.S. as children. Some of the basics to see if your friend might qualify for DACA are if they were under the age of 31 on June 15, 2012; if they came to the U.S. before they turned 16; and if they have lived in the U.S. since June 15, 2007. USCIS announced that it is accepting first-time DACA applications, renewals and advance parole documents to travel in two-year increments. This is great news for many folks for whom the U.S. is truly home, who have been educated here or served in the armed forces, and who want to further contribute to the tech ecosystem and economy.

Besides DACA, what other options are there for founders to move to the U.S. in 2021?

To be clear: The U.S. does not currently have a startup visa (you can read more about it in my op-ed in the Times of San Diego). According to the National Foundation for American Policy, if the U.S. had established a startup visa in 2016, it would have created 1 million to 3.2 million jobs over 10 years. I’m doing all I personally can to contribute to the creation of the U.S. Startup Visa or possibly the resurrection of International Entrepreneur Parole as we look ahead to the Biden/Harris administration.

That being said, we have solutions, advanced information and creative options, some of which I can share here with you. Check out 7 of the Most Startup-Friendly Visas Explained. Coming out of COVID in 2021, here are the most common visas and green cards that work for many founders. As immigration law is very nuanced, often people contact me to find specific alternative strategies that better suit their long-term goals.

B-1 visa for business visitors

The B-1 is a nonimmigrant (temporary) visa that enables entrepreneurs to explore the U.S. market. Under a B-1 visa, a founder or entrepreneur cannot be employed in the U.S., but can come for a business trip. This means you should not do any paid or unpaid work for a U.S. entity on your trip. However, some activities for founders are OK, such as meeting with investors, negotiating contracts, interviewing and hiring staff, and establishing an office. A B-1 visa typically allows for a maximum stay of one year — six months under the initial application and a six-month extension. It’s usually best to spend less than half the time in the U.S. on B status to ease future entries.

Founders who are citizens of designated countries, including Chile, can qualify for the ESTA (Electronic System for Travel Authorization) visa waiver program, allowing them to travel to the U.S. for business for 90 days or less without first obtaining a visa. ESTA cannot typically be extended or changed once you are in the United States.

L-1A visa for intracompany transferee managers and executives

The L-1A is a nonimmigrant visa that’s a great option for a startup founder who has already created a startup abroad and wants to expand to the U.S. We expect visa interviews to generally go back online for L visas in 2021.

To be eligible, a founder must have worked at the startup abroad for at least one continuous year within the past three years. The L-1A requires a company sponsor. To sponsor a founder for an L-1A, the startup must generally show:

  • It is or will be doing business in the U.S. and at least one other country.
  • It’s providing goods or services in the U.S.
  • It has an office in the U.S. or that the founder will be opening one.
  • Its U.S. office will support its founder within one year of USCIS approving the L-1A.

The spouse of an L-1A visa holder is eligible to apply for a work permit. The L-1A may also offer a direct path to permanent residency through the EB-1C green card.

E-2 visa for treaty investors

The E-2 is also a nonimmigrant visa. It’s good for a founder who is a citizen of a country that has a trade treaty with the United States and who is planning to substantially invest in creating a startup in the U.S. or whose startup is setting up an office in the U.S. Citizens of Chile are eligible to apply for an E-2 visa. You do not have to be born in Chile to qualify.

To qualify for an E-2, at least 50% of the owners of the U.S. entity must be citizens of the treaty country, and the startup must generate enough income to provide a living to the founder and the founder’s family — or at least do so within five years. Employees of the sponsoring company who are citizens of the same treaty country are also eligible for an E-2 visa if their work is essential.

One major benefit of the E-2 visa is that the spouse of the E-2 visa holder can get a work permit. The E-2 visa allows an unlimited number of renewals to those who qualify. Moreover, the E-2 offers no direct path to a green card, but the EB-2 NIW may often be a good long-term fit in this situation (see below).

H-1B visa for specialty occupations

Previously, startups in the U.S. faced substantial upfront costs and risks when sponsoring founders for an H-1B visa in the annual lottery process. That changed this year when USCIS launched a new online registration system. Now, company sponsors only need to pay a $10 registration fee for a candidate to participate in the digital H-1B lottery. Only those employers whose candidates are selected must prepare a full H-1B petition. Prior to this year, employers had to prepare a full H-1B petition — a costly and time-consuming undertaking — for a candidate to participate in the lottery. This situation is much better now for early-stage companies.

The H-1B visa is good for a startup founder who has already created — or is in the process of creating — a startup in the U.S. and doesn’t yet have the achievements to qualify for an O-1A visa or an EB-1A or EB-2 NIW green card, which I’ll talk more about in a bit. The H-1B also offers a startup founder the ability to renew that status beyond six years if applying for a green card.

The process of having a startup sponsor its founder for an H-1B can be tricky, whether the startup is sponsoring its founder for the first time or the founder is transferring an existing H-1B from another employer to the startup. To qualify for an H-1B, founders must structure the startup so they have a true employer-employee relationship with the company.

O-1A extraordinary ability visa

Most startup founders possess extraordinary abilities or have garnered significant achievements to get where they are that may qualify them for the O-1A nonimmigrant visa. The O-1A is good for a founder with a startup in the U.S., since it requires an employer sponsor, and for those who need a visa in a relatively short period of time. In addition, the requirements for an O-1A are less stringent than for the EB-1A extraordinary ability green card, which I discuss below, making it good for founders who need work authorization in a shorter time period or who don’t qualify for an EB-1A green card.

I delve into how to qualify for an O-1A and self-petition your own green card in my Extraordinary Ability Bootcamp that anyone can enroll in. If you would like to learn more, we will be hosting a webinar on Wednesday, December 16 at 11 a.m. PST.  Register here!

EB-1A extraordinary ability green card

At this webinar we’ll also be discussing the EB-1A green card, great for founders who have achieved substantial international or national success in their field due to their extraordinary talent and want to live permanently in the U.S. Startup founders can file an EB-1A petition on their own or their U.S.-based startup can sponsor them without the founder giving up control of the startup as is the case with an H-1B visa. In addition, employer sponsors do not need to go through the costly and time- consuming labor certification process with the U.S. Labor Department prior to filing an EB-1A petition with USCIS.

The eligibility requirements for an EB-1A are stringent, but many entrepreneurs I’ve met underestimate their accomplishments, so I recommend asking an immigration attorney to assess your eligibility. Although individuals born in India and China face waiting for an EB-1A green card, the wait is not as long as for other employment-based green cards. And premium processing is available for EB-1A petitions.

EB-2 NIW exceptional ability green card

The EB-2 NIW (National Interest Waiver) green card offers the same benefits for founders and employer sponsors as the EB-1A, but the eligibility requirements for the EB-2 NIW are less stringent. The downside to the EB-2 NIW green card for individuals born in India and China is that they face a much longer wait than for an EB-1A. And unlike the EB-1A, premium processing is not available but fingers crossed that it will arrive in 2021.

Join me at Bootcamp! Wishing you every success in transforming your startup dreams from thought into reality.

Best regards,

S


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!

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