Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, 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.
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Dear Sophie,
I wasn’t able to make TechCrunch Disrupt this year.
What were your main immigration takeaways for founders and startups?
— Faraway Friend
Dear Friend,
Appreciate your asking! Of course the conference had an incredible lineup of speakers, but my most amazing learnings were from my conversations with you — my readers — and your incredible stories, questions, and offers of mutual support.
Contributing this column has led to my own personal growth as I’ve committed to sharing my voice in the world. While this has been a fascinating but 1-to-N experience for a while now, it was wonderful to be able to draw together supporters, make new friends, and help forge relationships between my connections, IRL.
I also learned a tremendous amount from your real-life questions about things I can continue to share in this column, at the intersection of the ever-evolving landscapes of (a) immigration and (b) startups. (Those are two quickly moving fields!)
As the funding landscape is changing, many founders came to me with a similar question:“Sophie, your articles are all great and everything, but I haven’t raised money yet. We just have customers. Without VC funding, can I even qualify for a visa?!”
The answer, dear reader, is yes!
Read on for my top 10 takeaways from TechCrunch Disrupt 2023!
Image Credits: The Photo Group (opens in a new window) / Flickr (opens in a new window) under a CC BY 2.0 (opens in a new window) license.
1. You don’t need a degree to get an O-1A, EB-1A or EB-2 NIW
It’s true! It really doesn’t matter if you have a PhD, you’re a child prodigy, or you dropped out of college. The O-1A visa for extraordinary ability is often a top choice of the many options for global founders to come to the U.S. in about four to six months and build their companies. The EB-1A green card is related to the O-1A, but it takes at least a few years, as it’s for a green card and it’s becoming the penultimate stop in this journey to permanent residency for many accomplished individuals in the India and China lines, often prior to the I-485 Adjustment of Status Application. Another green card pathway called an EB-2 NIW has been preferred by global founders. It’s started to have a slight backlog, but it’s often overall easier and faster than the O-1A or EB-1A.
Check out this prior column elaborating the requirements for each, but keep in mind the bottom line: No degree? No worries, be happy! A degree is not absolutely required and you can find a myriad of other ways to qualify!
Many brilliant people who are changing the world are doing it in ways beyond formal, traditional education models. Indeed, it’s often required to be on the leading edge to help shift the world to a new mode of reality. If it can be taught, then it has been done. You’re in good company!
2. You don’t need venture funding
I chuckle at this one, because when I founded my Silicon Valley law firm eight years ago now, the challenging thing was actually getting a work visa approved for a pre-revenue, venture-backed startup!
Please recall: Modern U.S. immigration laws are almost 60 years old, and they are rooted in prior legal frameworks from decades and even centuries before. I’m pretty sure venture capital didn’t exist back then. You probably had to figure out how to invest in a ship to “carry” physical goods around the world if you wanted a chance at an asymmetric upside.
Therefore, the U.S. Citizenship and Immigration Services (USCIS), the Department of State, the laws, the regulations — all of it is geared toward traditional business. Yes, that used to involve a brick-and-mortar office, and those requirements have loosened, but back then, to get a visa approved, you needed to show a product or service being sold to customers in exchange for money. Not SAFE notes and debt instruments.
So if you’re thinking, “Gosh, I would love to move to America because there’s customer interest and if we sell for a while and prove traction and later we might raise funding and scale,” you might actually have an easier time qualifying!
3. You can lock in a priority date now
This was another biggie at the conference. So many brilliant and hardworking students and recent grads, many toward the beginning stages of their careers, attended my talks. It’s inspiring to see that so many aspiring entrepreneurs have the option of going on their own path immediately in lieu of following the traditional corporate America approach of paying their dues.
But that can become an issue in Green Card Land, especially for folks born in India and China, as they haven’t yet done the whole employment process of H-1B lottery followed by PERM and an I-140, which is how many people have traditionally locked in their “priority date” to claim a spot in line despite growing green card backlogs.
The approach that seems to be helping a lot of Disrupt attendees from India and China is this: Figure out when it’s safe to self-petition your I-140 and choose the easier EB-2 NIW I-140 path; figure out how to build up your accomplishments and eventually navigate to an O-1A; and later file another I-140 in the EB-1A category so when your original priority date is current, you can use it and file your I-485 based on your EB-1A.
Nota bene: The O-1A is not required to get an EB-1A. You can get an EB-1A even if you’ve never set foot in America; it doesn’t matter. The issue is that the EB-1A requires a long-time track record of success in your field, and it can often feel persuasively and subjectively helpful to go through the exercise of getting an O-1A first, which is held to an easier standard.
4. Wait time for India for EB-1A and EB-2 is likely 4 and 12 years, respectively
This was something I talked about a few weeks ago in my column. We replicated the Cato Institute research from 2018 that said that if you’re from India and you have a PhD, you will have to wait over 151 years or more for your green card.
Obviously a lot changed in the last six years: The presidency, the pandemic, the great resignation, layoffs, and talent shortages are all macroeconomic factors that directly affect how long people will have to wait for their turns in line to get a green card.
When you look at the Visa Bulletin, there isn’t a 1:1 match of when you filed and when your priority date will march forward. Sometimes there are bulges or gaps in line ahead of you, so your date might draw on interminably or rush forward.
You can see the data we looked at and the analytical approach in that prior column, but the conclusion is that barring any global shifts (hahaha), the India wait times might now be 12 years for EB-2 and 4 years for EB-1A.
5. You don’t need an O-1A to get an EB-2 NIW
This is similar to #1 and #3 above. Actually, while we’re at it, you don’t even need to be a startup founder to qualify for any of these categories. Visas and green cards are available to people in a variety of verticals — business, entrepreneurship, the arts, science and research, sports and entertainment, and more.
6. You don’t need funding to get an H-1B
How much money does a startup need to transfer in the H-1B of a founder full-time, or even get them authorized for part-time work? Where can it come from?
If you are considering making a job offer and sponsoring an H-1B petition, your company, once again, does not have to have been venture funded.
From a legal standpoint, we lawyers are trying to demonstrate your company is legit and that it has the ability to pay the candidate the prevailing wage for the employment during the petition validity period.
There are so many variables here that companies control! You can decide what role you’re hiring for, the geographic area, if it’s remote, hybrid or on-site, whether it is salaried or hourly, full-time or part-time, the minimum requirements, and who you want to hire. Typically an H-1B is valid up to three years at a time — but you don’t even need to request that; perhaps somebody only wants to petition for one year of work authorization to accomplish specific objectives.
Based on those factors, your immigration lawyer will help you figure out the minimum required pay to the candidate assuming the H-1B is approved and the person is physically in the U.S. in H status to work for the company.
Companies are funded in many ways — scientific grants, founders contributing capital, loans, or investment from a small group of friends and family — whether or not the company has hockey-stick growth aspirations. There are many ways to ensure your company has enough money to file an H-1B.
7. It’s okay if you don’t have a valuation
The USCIS was designed for the traction of traditional businesses; the paper valuation thing was the fluke. This can come up for O-1As because one of the prongs has to do with “high remuneration,” which relates to a future job offer, past pay for a job, or the valuation of prior business, among many examples.
Part of the DNA of what makes Silicon Valley work and fuels the innovation ecosystem is this concept of valuations “on paper” of companies well before they have income or users, based on whatever metrics investors value at the time.
Over time, the USCIS has been willing to recognize this concept of paper valuation for high remuneration related to O visas.
But yesterday, for example, I spoke with an exited founder-turned-VC who wants a visa. Even though this founder now has a family office overseeing tens of millions of dollars of investments, the founder was concerned that since they had mostly bootstrapped in private, that they couldn’t demonstrate the O-1A qualifications. That is completely incorrect!
8. If you set up your immigration properly, you are safe, even if this particular company fails
More and more founders are positioning themselves for O-1As petitioned by agents. The beauty of an agent-petitioned O-1A is that you don’t have to work for a single employer. You can actually include an itinerary of services to work at multiple gigs in your field. This can give you protection, as startups are high-risk and companies may come and go. Additionally it opens you up to further opportunity as you might want to pursue side projects, consulting work to pay for your ramen, and other product opportunities as you build your network in the U.S.
9. Minimum surface area for attack
Most people, if they had a magic wand, would want the cheapest and best immigration lawyer who could 100% guarantee victory. Although we immigration lawyers wish we could do that, it’s contrary to the laws of the universe.
If you have time and you have money, you can optimize for peace of mind throughout the immigration process by choosing to navigate by making incremental moves that minimize any possible surface area for attack in your immigration.
For example, instead of leaping from an H-1B to an EB-1A, I’ve had some clients keep their day job and pursue their first O-1A to work at that company, then switch their O-1A to an agent and leave their day job to pursue their startup, and then they accomplish more, and later they file for the EB-1A.
You don’t have to do everything all at once, when you’re playing the long game.
10. You are part of a vast network of people following their hearts to do good in the world
My biggest takeaway from Disrupt was feeling inspired to continue down this crazy course of making the world a better place by fixing the world’s immigration and opening Silicon Valley to all the dreamers and doers who are following their hearts to contribute whatever it is that gets them into a flow state to benefit the greater good of humanity, this planet, and all beings.
I hosted a (little) party that I wish could have been way bigger to welcome the brain trust of heart-centered geniuses who read this column. Thank you for coming out, thank you for saying hello, thank you for your smiles.
You inspire me! Keep going! You’ve got this!
All my best,
Sophie
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