Ask Sophie: How does my immigration status affect export control licensing to build in space tech?

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’m working in the U.S. in the aerospace industry on a J-1 research visa. I want to pursue my own space tech startup, but people have mentioned I will have to get an export control license because of my immigration status. Could you explain what I need to be aware of? Any advice?

— Fastidious (Soon-to-Be) Founder

Hey there, Fastidious!

Thanks for reaching out to me with your timely questions! U.S. export control laws have been in the news recently, and the U.S. Department of Justice released an employer fact sheet on complying with export control laws. While the fact sheet focuses on how employers can avoid violating immigration laws and discriminatory employment practices, it provides a good background on export control.

In addition, listen to my chat with Chris Hearsey, an expert in space law and founder and CEO of OSA Consulting (OSA stands for Outer Space Activities). We talked about space law and what space tech startups should keep in mind. The startup and investor market for commercial space technologies is growing rapidly, so it’s important for international founders to be aware of the requirements.

Before I dive into your questions, let me provide a little context on export control, the J-1 educational and cultural exchange visa, and employment authorization. Remember: If you need personal legal advice, you should always hire an expert attorney.

What is export control licensing?

U.S. export control laws govern how technology, software, technical data and other materials are physically or electronically exported or shared with foreign countries or foreign-born individuals, including those working in the U.S. on valid work visas.

These laws are in place to protect U.S. national security, foreign policy, and economic interests. The U.S. government requires companies to obtain export control licenses before releasing any export-controlled technologies or items to “non-U.S. persons,” which include citizens, nationals, lawful permanent residents (with green cards), refugees and asylees.

If you are not a U.S. person and you need to work on any controlled technologies, your company must seek any applicable export-control authorizations from the Department of State and Department of Commerce, which can be related to the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR). It’s the company’s and founders’ responsibility to assess whether they possess any controlled technologies and what they need to do about it.

Given this, getting a green card is the ultimate and most direct way for an aspiring space tech founder immigrant to get clear with the export control licensing requirements. I’ll dive into the two employment green cards that you can apply for on your own in a moment, but first, I want to remind you about the requirements of the J-1.

What you should know about the J-1

As you know, the J-1 visa aims to foster knowledge and cultural exchange between the U.S. and other countries by enabling individuals to come to the U.S. for work, training and learning.

At the end of the J-1 program, you may be able to participate in another J-1 program or apply for a different visa. Keep in mind that some J-1 holders are subject to the two-year home-country residency requirement at the end of the J-1 stay, which has some exceptions. I recommend speaking to an immigration attorney about this:

Many J-1 visa holders must return to their home country to live for at least two years when their visa expires if they are subject to the 212(e) two-year foreign residence requirement. Those who want to avoid this requirement may file for a waiver from the U.S. Department of Homeland Security before the J-1 visa expires while in the U.S. or before applying for another visa to travel to the U.S. J-1 holders who received the Fulbright have a notoriously challenging time obtaining 212(e) waivers. Take a look at this previous Ask Sophie column for more details on this.

The O-1A extraordinary ability visa is available to people subject to 212(e), if you elect consular processing. If you are unable to get a 212(e) waiver or are afraid it might take too long and you want to remain in the U.S., consider building up your portfolio of accomplishments for the O-1A during your J-1 program. You can do that with volunteer activities or activities that are related to your training program. You could also travel back and forth while on an O-1A and use sabbaticals in your home country to slowly fulfill your 212(e) two-year residency requirement. This Ask Sophie column discusses how to qualify for each of the O-1A criteria.

If you move back to your home country to fulfill the two-year residency requirement, you can start another visa application or even the green card process from there. Both the EB-1A extraordinary ability and the EB-2 NIW (National Interest Waiver) green cards allow you to sponsor yourself without a job offer. I discuss these two green cards in more detail below.

What you should know about working

The J-1 authorizes you to work for only your current employer, so you must not do any work for a new startup on the side unless you have some sort of work visa or other employment authorization. Unauthorized employment disqualifies you from remaining in the U.S. and from obtaining future visas or green cards.

However, certain activities do not meet the immigration definition of work, such as conducting research, attending business meetings with prospective collaborators, or signing personal contracts. Ask your immigration lawyer about other activities you wish to engage in to find out if they are permissible in your current status.

Self-petition for a green card

As I mentioned earlier, the EB-1A and EB-2 NIW green cards are the only employment-based green cards that allow you to apply on your own without an employer sponsor. Take a look at this previous Ask Sophie column in which I walk through the requirements for both the EB-1A and the EB-2 NIW green card.

According to the November 2023 Visa Bulletin, the EB-1 is the only employment-based category that has green card numbers currently available for all countries except India and China. Even though there’s a cutoff date in the EB-1 category for individuals born in India and China, the cutoff date is later than those for the EB-2 and EB-3 categories. (Check out this Ask Sophie column for an intro on how to read the Visa Bulletin.)

Regardless of where you were born, I recommend that you spend the time to build up your qualifications to apply for the EB-1A rather than apply now for the EB-2 NIW. This Ask Sophie column goes into more detail about qualifying for the EB-1A.

To the final frontier — you’ve got this!

— Sophie

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