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 am from Georgia but I live in Poland. I created my startup in Delaware a few years ago. To realize it and grow it, I need to move to the U.S.
I have a business plan and a market plan, but no immigration plan. What’s your advice? Which visa should I apply for?
— Global Georgian
Dear Global,
Congratulations on creating a plan and following through to expand your startup in the United States! I am committed to helping founders like you make the world a better place by coming to the U.S. to achieve your dreams. Thanks for reaching out!
Before I dive into your visa options, let me pass along some advice that Daniel Zawarczynski, the Austrian Trade Commissioner to the U.S. and co-director of Open Austria, offered to startup founders during our recent podcast. “Use all the resources you have on the ground and build your local network,” he advised. “Knowledge can be acquired so easily through Google and YouTube videos, but knowing the right people to trust and who trusts you is really the path to success.”
To start building that network of trusted individuals, I suggest consulting with an immigration attorney to help guide you on your immigration journey to the United States based on your business plan, timing, your long-term goals, your education, your qualifications and your unique situation.
Now, let’s lay out your immigration options!
“Transferring” to the U.S.
The L-1A visa for intracompany transferee executives and managers offers a great option for international founders who have been working for their startup abroad for at least one of the past three years and want to open an office in the U.S. If you have been working for a legal entity in Poland that’s related to your startup, your Delaware entity could sponsor you for an L-1A visa to come to the U.S. to open an office here. You will have to provide evidence that you have been on the payroll of your startup for at least a year through pay slips or tax documents.
The L-1A visa application will require you to submit documents such as business plans, growth models and organization charts. You will need to show that you have secured an office in the U.S. and that the U.S. office will support your position within one year of the L-1A visa being approved. Even though more people are working remotely in the U.S., the L-1A requires your company to have a physical office, which is also considered a sign that your company is serious, viable, growing and even hiring. We’ve been successful in getting L-1 visas approved for companies situated in a co-working space, but I would still recommend a stand-alone office within it.
If you’re setting up a new office in the U.S. and are approved for an L-1A, it will only be initially valid for one year. To extend the L-1A beyond that, you will need to show that your U.S. business has met your growth projections and is viable. The L-1A is valid for up to seven years, so you can extend it multiple times.
L-1A visa applications are heavily scrutinized by immigration officials, so I recommend working with an immigration attorney to present a strong case.
L-1 visas are one of the few dual-intent visas, which means it’s very easy to apply for a green card in parallel. The L-1A offers a path to permanent residence for startup founders via the EB-1C green card for multinational executives and managers.
Visas for extraordinary founders
I find that international founders can often easily qualify for the O-1A extraordinary ability visa while growing and scaling their businesses. Some of the qualifying criteria for the O-1A include playing a critical role at a respected company, securing funding, making contributions to your field, and generating widespread media attention and recognition for your company. Take a look at this previous Ask Sophie column in which I go into each of the O-1A criteria in more detail.
Like all other work visas, the O-1A requires you to have an employer sponsor and a job offer. Your startup must apply for the O-1A on your behalf. That means you will need to set up your company in the U.S. I suggest you talk to a corporate attorney. If you eventually want to seek funding, keep in mind that often, VCs prefer investing in a C corporation created in Delaware. That’s primarily because Delaware laws protect investors and are very clear, and Delaware corporations can distribute two or more classes of stock and stock options to founders, employees, investors, and board members.
Also, most investors prefer to invest in a parent company that’s based in the United States, so you will likely need to consider ensuring your U.S. company owns your company in Poland when you’re ready for a funding round. You may need to do what’s called a “Delaware flip” to make your company in Poland a subsidiary of your U.S.-based company. You should have your corporate attorney advise you on that, especially if you’ve already distributed shares in your startup in Poland.
While the O-1A is not technically a dual-intent visa, it allows for dual-intent. That means an individual does not have to maintain foreign residency, and filing for a green card does not disqualify the individual from obtaining or keeping an O-1 visa.
The EB-1A extraordinary ability green card has many of the same criteria as an O-1A visa. Many of our clients find the EB-1A is easily in reach once they have an O-1A visa. Polish founders might want to also consider the EB-2 NIW green card, which can be about the same speed but is easier to obtain.
Visit and check things out
If you want to come to the U.S. to meet with attorneys, conduct market research and interview potential customers, set up your company or secure an office, you can get ESTA or a B-1 business visitor visa, which will enable you to stay for at least six months.
When you arrive in the U.S., you must tell the U.S. Customs and Border Protection (CBP) officer that you will be conducting business during your stay here and specifically request a B-1 business visitor visa status. This can be really important! Working while being a business visitor would violate your status and jeopardize your ability to live and work in the United States or even enter the U.S. in the future. However, some business activities, such as meeting with prospective investors or lawyers, negotiating contracts, participating in professional conferences, attending workshops or training programs, networking, and conducting independent research are not typically considered employment and are usually acceptable in B-1 visa status.
It’s also very important to keep in mind that the B-1 visitor visa is a nonimmigrant visa, which means you must demonstrate to U.S. immigration officials that you do not have immigrant intent (the intention to get a green card to stay permanently in the U.S.) and therefore, you intend to eventually return to your country of residence. If an immigration official is convinced that you have immigrant intent, you may not be allowed into the U.S. and it may jeopardize your ability to live and work in the U.S. in the future.
If you’re ready to apply for either the L-1A or O-1A, your company can petition for you and either application can be filed with 15-day premium processing, which means the U.S. Citizenship and Immigration Services will either make a decision on your case or issue a request for evidence within 15 calendar days.
You’ve got this! All my best wishes for your success!
— 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!