Here’s another edition of “Ask 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 in the U.S. on an H-1B visa, but I want to leave my current job and pursue a couple of startup ideas: One with a few friends, and the other on my own.
Do I need to get two separate visas to work at both companies at the same time? Can I transfer my H-1B to one or both companies?
— Energetic Entrepreneur
Dear Energetic,
Wow! Founding two startups and bringing them both to fruition will certainly keep you busy! I admire your drive and applaud you for your gusto and determination!
Let’s first provide some context on work visas versus work permits, and then offer up a few suggestions and alternatives.
Work visas vs. work permits
A work visa, such as the H-1B specialty occupation visa and the O-1A extraordinary ability visa, enables its holder to temporarily live in the U.S. and work only in the engagements included on the original visa petition, Form I-129.
Certain categories of people, such as F-1 students, some dependent spouses of work visa holders, and people pursuing green cards, may be eligible to apply for a work permit that is not tied to any specific employer. (Examples include F-1 OPT, F-1 STEM OPT, E-2 and L-1 spouses, and individuals who have been approved for a green card and have a pending Form I-485, the Application to Register Permanent Residence or Adjust Status.) Also known as an Employment Authorization Document (EAD), a work permit provides proof of authorization to work in the U.S. and enables its holder to get a job or jobs.
Compared to a work visa, an EAD offers wide flexibility to entrepreneurs and founders. That’s one reason we often ask our married entrepreneur clients whether their spouse is eligible for a work visa that offers an EAD to a dependent spouse.
H-1B transfer and concurrent H-1Bs
You can transfer your H-1B from your current employer to another employer for part-time or full-time work. You can also hold two or more concurrent H-1Bs from different employers at the same time.
Although an H-1B visa petition is tied to a specific job with a specific employer, there are no limits on the number of H-1B jobs an individual can hold and no standard minimum — or maximum—number of hours a person can work in any given H-1B position.
Since you’re currently on an H-1B — and already went through the annual H-1B lottery process — you can transfer your H-1B to another company and avoid having to go through the lottery process again. However, you should keep in mind that the maximum stay allowed under an H-1B visa is typically six years unless you apply for a green card.
So, if you’ve been inside the U.S. on H-1B status for a cumulative period of four years, transferring your H-1B to your startups would mean you can live and work in the U.S. for two more years in this status.
H-1B transfers and concurrent H-1Bs can be tricky, particularly for early-stage startups, so it’s important to create a compliant foundation for immigration sponsorship. You will need to structure your startups so that they are eligible to sponsor you for a position and that clear lines are drawn between the two startup entities. I recommend you work with both a corporate attorney and an immigration attorney.
To sponsor you for a work visa, each startup must demonstrate that an employer-employee relationship exists with you. That means someone at each startup must have the ability to hire, supervise and fire you. And generally, it’s best if you hold less than 50 percent equity in your startups and avoid the title of CEO.
To transfer your H-1B to your startups, you and each startup will need to apply for the H-1B by first getting each startup’s Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification, and then each startup must file a Labor Condition Application (LCA) with the Labor Department for approval.
For the LCA, each startup must promise to pay you the prevailing wage given your position and the geographical location where you are based. Each startup can file an H-1B petition (Form I-129) to U.S. Citizenship and Immigration Services (USCIS) once the LCA is approved.
Although there is no legal requirement as to where the source of your funds for payroll comes from (revenue from sales, a pre-seed friends and family round, or funding from a VC are all possible), the startups will also have to demonstrate they have the ability to pay your prevailing wage.
In this scenario, it might be easiest to first transfer your H-1B for full time or part time work from your current employer to the startup with a cofounder, and then after that you can lay the groundwork to qualify for an additional part time concurrent H-1B for your other project.
Take a look at this previous Ask Sophie column in which I discuss the H-1B transfer process in more detail, and check out his podcast about what makes a strong H-1B.
O-1A with an agent
I often suggest that founders focus their limited time, energy, and money on pursuing an O-1A extraordinary ability visa rather than the H-1B, especially if I see factors such as:
- You presently or can soon qualify for an O-1A
- You weren’t picked in the H-1B lottery
- You are a solopreneur
- You prefer to be CEO
- You have majority equity
- As well as other possible factors.
While you will still need to demonstrate an employer-employee relationship exists between you and your startups, the O-1A does not have a prevailing wage salary requirement like the H-1B and does not require a certified LCA. What’s more, if you file an O-1A with a U.S. agent, you only have to pay for and submit for a single I-129 application compared to two for H-1Bs from each of your startups as your various work endeavors can be listed on a single itinerary of services.
The O-1A is the only work visa type that allows you to work with multiple companies under a single visa. To do this, you need to have a U.S. agent acting either as your employer or representing multiple employers to sponsor you for the O-1A. You can work with a formal agency or even a colleague in your field may act as your U.S. agent.
I really like O-1As with agents as they can allow founders to engage in various types of employment such as:
- W-2 employment as a founder at a startup
- Being a solopreneur
- Consulting in your field
- Acting as CEO
- Holding majority equity
- Engaging in 1099 contractor work
- Writing books which earn revenue
- Working as an advisor for equity in other startups
- Acting as a venture scout for VCs
This flexibility is also excellent if you are subject to the green card backlogs for individuals born in India or China and you need time and autonomy to engage in multiple work projects to position you for an EB-1A green card (more below).
The petition must provide the details of the relationship between you as the O-1 beneficiary and the U.S. agent. This doesn’t offer complete autonomy, but it will give you the freedom to choose multiple startup projects in your field. You will want to talk with your immigration attorney about this process and qualifying for the O-1A visa. Your agent, like a petitioning employer, would be responsible for your return ticket home in the event that your work ceases.
In addition to meeting at least three of the eight criteria, such as receiving funding or other nationally or internationally recognized awards and press about you or your startup. In this previous Ask Sophie column, I describe in detail what type of evidence to present to meet each criterion.
If you use an O-1A agent, your petition will need to include:
- A list of all the work projects that you have tentatively lined up in the U.S. over the next three years (which is the maximum length of an initial stay on an O-1).
- The expected duration of each project.
- The names and addresses of the companies for which you are doing the projects and where they’ll be done.
Green card
Depending on what country you were born in, consider applying for either the EB-1A extraordinary ability green card or the EB-2 NIW (National Interest Waiver) green card. If you were born in China or India, I currently recommend applying for the EB-1A green card since the wait times for those from China and India have grown substantially in recent months. Individuals born in all other countries can consider either the EB-1A or the EB-2 NIW.
Talk with your immigration attorney to determine which green card type best suits your abilities, accomplishments, and future goals. Take a look at this previous Ask Sophie column in which I talk about both green cards in more detail.
Getting a green card will take one to two years if there are green card numbers available in the green card category you are pursuing and for your country of birth. During that time, you need to make sure you maintain your status. Once your I-485 is filed, most attorneys will usually also file your work permit application in parallel, and currently it’s taking about 6 months to receive these EADs.
You’ve got this!
— Sophie
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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!