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Dear Sophie: What’s the best option for international founders to expand in the US?
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.
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.”
“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one or two-year subscription for 50% off.
Dear Sophie:
I’m a startup founder in Israel looking to expand into the U.S. market. What is the best visa option for me and a key member of my executive team to come to the U.S. to establish a sales and marketing office there? I would like my spouse and children to join me if my spouse can also work in the U.S. Is that possible?
— Tenacious in Tel Aviv
Dear Tenacious:
Thanks for reaching out. Based on your situation, the E-2 visa for treaty investors and employees may offer the best option.
An underutilized option, the E-2 visa is ideal for startup founders and employees whose home country has a treaty of commerce and navigation with the U.S. Israelis became eligible for E-2 visas just last year, joining the citizens of 80 other treaty countries. For more details on E-2 visas for founders and employees, check out Episode 16 of my “Immigration Law for Tech Startups” podcast.
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Dear Sophie: Is unemployment considered a public benefit?
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.
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.”
“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one or two-year subscription for 50% off.
Dear Sophie: I have an H-4 visa and work authorization. I currently have a job that’s considered nonessential during the coronavirus emergency. If I get laid off, I would need unemployment assistance while I look for another job.
Would getting unemployment benefits hurt my or my spouse’s green card petition under the new public charge rule?
— Nonessential in NorCal
Dear Nonessential:
Thanks for your timely question. The short answer is no, getting unemployment benefits alone right now won’t jeopardize your or your spouse’s green card. This is because receiving unemployment benefits, getting tested for coronavirus and seeking emergency medical treatment (even if it’s covered by Medicaid) are all exempt from consideration as government benefits under the new public charge rule.
Immigration officials have long had the authority to deny individuals a visa or green card if they are likely to be dependent on public benefits. The new public charge rule, which went into effect on February 24, expands the factors immigration officials will consider. An additional form seeking health and financial information must now be submitted with most visa and green card applications. Immigration officials will use that information to determine whether applicants are or are likely to become dependent on government benefits.
If you have received a public benefit in the past, your application won’t necessarily be denied, but given what’s at stake, it’s important to consult an experienced immigration attorney.
Individuals who will be subjected to the increased scrutiny of the expanded public charge rule are:
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Dear Sophie: How do I get visas for my team to work from home?
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 by this contributor
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.”
“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one or two-year subscription for 50% off.
Dear Sophie:
I sent my startup team home to work remotely for several weeks. We have several folks on visas and work permits — am I supposed to do anything special for them? Can I proactively get visas for future employees to primarily work from home?
— Burrowing in Burlingame
Dear Burrowing,
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David and Goliath: Approaching the ‘deal’
Adam Zagaris is an attorney, partner and founder at Moonshot Legal, specializing in commercial contracts. Adam helps startups close deals and move up and to the right.
It is a simple question with a complex answer. How does a startup get from zero to execution when negotiating contracts with potential customers that are large enterprises? The 800-pound gorillas. Situations in which your negotiating leverage is limited (often severely so).
As a commercial contracts attorney, clients often ask me about the one right way to approach deals. Many are looking for a cheat sheet of universal terms they should push for in contracts. But there is no one answer.
Deals are not cookie-cutter, and neither are the contracts on which they are built. That said, a basic framework can help provide startups with some grounding to better think about negotiations with large enterprises. The idea is to avoid over-lawyering, and instead approach the discussion with a legally prudent yet deal-centric mindset.
There are generally six overarching considerations as you head into negotiations with large, enterprise organizations.
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How to handle dark data compliance risk at your company
Lisa Hawke is VP of Security and Compliance at Everlaw, and Vice Chair of Women in Security and Privacy.
Slack and other consumer-grade productivity tools have been taking off in workplaces large and small — and data governance hasn’t caught up.
Whether it’s litigation, compliance with regulations like GDPR or concerns about data breaches, legal teams need to account for new types of employee communication. And that’s hard when work is happening across the latest messaging apps and SaaS products, which make data searchability and accessibility more complex.
Here’s a quick look at the problem, followed by our suggestions for best practices at your company.
Problems
The increasing frequency of reported data breaches and expanding jurisdiction of new privacy laws are prompting conversations about dark data and risks at companies of all sizes, even small startups. Data risk discussions necessarily include the risk of a data breach, as well as preservation of data. Just two weeks ago it was reported that Jared Kushner used WhatsApp for official communications and screenshots of those messages for preservation, which commentators say complies with record keeping laws but raises questions about potential admissibility as evidence.
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How to delay your Form Ds (or not file them at all)
Building a startup is incredibly tough. There are the constant ups and downs, the moments of sheer ambiguity and terror. And so, few moments in a startup’s life are as triumphant — and crystal clear — as closing a round of funding. Yes, yes, raising venture capital shouldn’t be celebrated as a milestone, and the focus should always be on product and users … but it just feels so damn good sometimes just to feel that sense of euphoria: I built something, and now others are giving me potentially millions of dollars to shoot for the stars.
Unfortunately, that clarity is increasingly vanishing. First, “closing a round” is rarely as sharp a distinction as it used to be. Seed rounds (and even later-stage rounds) are often raised over extended periods of time, with many partial closings conducted as new angels and seed funds come to the (cap) table.
Then there is also the growing disconnect between raising capital and the actual announcement of that fundraise. Founders are trying to remain under stealth for longer periods of time to hide from competitors, and they want to message their news in a careful manner.
All of which means that the Form D filed with the Securities and Exchange Commission when closing an exempt fundraise (aka venture rounds) is no longer as simple a process as it once was.
Lawyers will state publicly that startups should always file their legally mandatory paperwork (that’s probably also a good rule for life). The reality, though, is pretty much the opposite when you talk to startup attorneys in private.
Here’s the secret about Form D filings today: the norms in Silicon Valley have changed, and Form D filings are often filed late, not at all, and many startups are advised to lie low in the hopes of avoiding stricter SEC scrutiny. What was once a fait accompli is now a deliberative process, with important decision points for founders.
Extra Crunch contacted about two dozen startup attorneys, from the biggest firms in the industry to the one-person shops with a shingle out front. Getting straight answers here has been tough, if only because no lawyer really wants to say out loud that they actively recommend their clients violate government regulations (there is that whole law license thing, which apparently lawyers care about).
Practically all of these conversations were done off-the-record and not for attribution, since as one lawyer said, “the last thing I need is the damn SEC sending our firm a nastygram.” Other firms wholly swore us off from even discussing their Form D cultures.
Full disclosure: I am not an attorney, and while I had attorneys read over this draft, this does not constitute legal advice, particularly specific legal advice for your specific startup and situation. Get inspiration from this analysis, but always (really, truly, always) consult qualified legal counsel to answer legal questions about your startup.
With that said, here is our guide to the new world of venture capital securities filings.
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How to make sure that your product is accessible to all users
Beth Franssen
Contributor
Contributor
Beth Franssen is an expert in digital accessibility, WCAG and Section 508 compliance. She helps fintech, retail and payment companies implement digital accessibility strategies for Nexient, a leading provider of 100% US-based Agile software product development.
Every founder wants an eye-catching website or app, but it’s easy to overlook a basic fact: not all your potential visitors will experience your content with their eyes. If you haven’t considered whether a user with differing visual, motor or hearing abilities can easily navigate your software, it’s time to get serious about digital accessibility.
As tempting as it might be to prioritize a stunning visual and mobile experience over an accessible design, accessibility is a legal requirement—not an option—for many businesses.
Just ask high-profile founder Beyoncé Knowles. In January, Beyoncé’s Parkwood Entertainment was hit with a class-action lawsuit that includes “all legally blind individuals in the United States who have attempted to access Beyonce.com.” The lawsuit claims that the site’s lack of visual alternatives make the site inaccessible to blind users like the plaintiff and therefore illegal.
Failing to accommodate people with disabilities not only limits your market (blind people buy concert tickets and merchandise too), it can also bring legal and reputational consequences.
The Americans with Disabilities Act (ADA) requires US businesses that serve the public to provide equal access and accommodations to everyone, whether through a physical building or a digital experience. Just as stores provide ramps as well as stairs, websites need to accommodate people with varying abilities, from movement disorders to visual and auditory impairments. The number of website accessibility lawsuits raised against private companies more than doubled last year. A single plaintiff won $100K in a similar ADA lawsuit in 2017.
While ADA is the enforcing legislation in the United States for the private sector, the Web Content Accessibility Guidelines (WCAG) provide de facto global standards web designers should follow. The guidelines are based on four principles: content must be perceivable, operable, understandable and robust.
If you’re not sure whether your digital content (websites, apps, e-books, etc) is WCAG-compliant, have a certified accessibility consultant conduct an assessment immediately, and contact your legal team should you identify any risks.
However, simple compliance is only the first step. Understanding how accessibility is defined will broaden your understanding of the overall user experience, so you can create better content for all users.
This article is part of Extra Crunch’s exclusive “Startup Law A to Z” series, following previous articles on employment law, customer contracts, intellectual property (IP) and corporate matters. This series is designed to provide founders the information needed to assess legal risks in the areas common to most startups.
Should you identify legal risks facing your startup after reading this or other articles in the series, Extra Crunch resources can help. You can reach out to the Verified Experts of Extra Crunch, who focus on serving companies at your stage, for further guidance in the particular issues at hand.
The Web Content Accessibility Checklist:
- Perceivable
- Time-based media
- Text alternatives
- Adaptable
- Distinguishable (Use of color)
- Operable
- Keyboard accessible
- Navigable
- Input modalities
- Enough time
- Seizures and physical reactions
- Understandable
- Readable
- Predictable
- Input assistance
- Robust
- Compatible for various assistive technologies (Links can be programmatically determined)
Perceivable
A website must present content so that users of different abilities can perceive it. That means providing alternatives for any non-text content, like images or music.
For time-based media (audio and video), captions, content descriptions and sign language are acceptable options.
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Pre- and Post-Money SAFEs: Choosing the right one for your startup
Jared Verzello
Contributor
Contributor
Jared Verzello is a startup and venture capital lawyer and GM of Atrium Seed where he guides companies through formation, fundraising, hiring, and managing board meetings.
With Y Combinator’s Demo Day taking place at Pier 48 in San Francisco next week, its largest batch of companies ever is getting ready to present to an audience of select investors. Having taken Atrium through Demo Day myself, I have first-hand knowledge of the process. When the founders have finished their pitches, the time to talk numbers will closely follow. Chief among the many decisions founders will face during this time is whether to opt for the Pre-Money SAFE or the new Post-Money SAFE, the two standardized legal documents that YC has introduced in recent years.
Both versions are meant to make the process fast, easy and fair for both parties in the early-stage fundraising process. But there are crucial differences between the two that founders should examine carefully.
Essentially, the Pre-Money SAFE is exceptionally favorable to founders because it gets them pre-valuation funding like a convertible note, but debt-free. The Post-Money SAFE sweetens some of the terms for investors, like locking in their percentage ownership in a priced round later on.
Overall, we expect the Post-Money version to become more common, especially if the company is raising a round above $1 million or $2 million, and the investors have more leverage to ask for it in the negotiation.
(Note: This article is aimed at giving founders a general understanding of the changes from Pre-Money SAFEs to Post-Money SAFEs. The information provided is based on my professional experience and opinions, and should not be used without careful consideration and advice by qualified advisors and legal counsel. Also, to learn more and ask questions about Pre and Post-Money SAFEs, join me on April 16th for a webinar where I’ll dive in a bit deeper.)
Two structures for raising startup investment
Today there are two general ways of structuring a startup fundraising round. The first can be called a “priced equity round,” and is characterized by the sale of preferred stock with a fixed valuation.
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What to watch for in a VC term sheet
Mital Makadia
Contributor
Contributor
Mital is a partner at Grellas Shah, focusing on representing tech startups and startup founders. She provides counsel on a variety of corporate and transactional matters and negotiates and structures equity financings, M&A transactions, and commercial and intellectual property transactions for her clients.
When startup founders review a VC term sheet, they are mostly only interested in the pre-money valuation and the board composition. They assume the rest of the language is “standard” and they don’t want to ruffle any feathers with their new VC partner by “nickel and diming the details.” But these details do matter.
VCs are savvy and experienced negotiators, and all of the language included in the term sheet is there because it is important to them. In the vast majority of cases, every benefit and protection a VC gets in a term sheet comes with some sort of loss or sacrifice on the part of the founders – either in transferring some control away from the founders to the VC, shifting risk from the VC to the founders, or providing economic benefits to the VC and away from the founders. And you probably have more leverage to get better terms than you may think. We are in an era of record levels of capital flowing into the venture industry and more and more firms targeting seed stage companies. This competition makes it harder for VCs to dictate terms the way they used to.
But like any negotiating partner, a VC will likely be evaluating how savvy you appear to be in approaching a proposed term sheet when deciding how hard they are going to push on terms. If the VC sees you as naïve or green, they can easily take advantage of that in negotiating beneficial terms for themselves. So what really matters when you are negotiating a term sheet? As a founder, you want to come out of the financing with as much overall control of the company and flexibility in shaping the future of the company as possible and as much of a share in the future economic prosperity of the company as possible. With these principles in mind, let’s take a look at four specific issues in a term sheet that are often overlooked by founders and company counsel:
- What counts in pre-money capitalization
- The CEO common director
- Drag-along provisions
- Liquidation preference.
What counts in pre-money capitalization
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Startup Law A to Z: Employment Law
Your startup will not succeed unless you, the founder, build an exceptional team. Great teams are built on top of great culture. Yet any venture-backed startup founder will tell you, myself included, that developing a positive corporate culture is more art than science, requiring constant and creative recalibration as your company grows. What then does this have to do with employment law?
First, building an exceptional team means hiring great people; whether that involves W-9s for consultants, I-9s for employees, lengthy H-1B visa applications, or a new employee handbook, you need to hire the right people in the right way. Second, one bad employment-related legal dispute can have ripple effects throughout an organization, undermining employee morale and executive credibility in one fell swoop, with palpable culture fallout.
Fortunately, when working to promote healthy company culture, founders can look to employment law for some preventive medicine. In fact, transparency through written policies, clearly communicated in advance and followed in practice, can help create the trust and accountability which are foundational to positive company culture. Moreover, in the event employment disputes do arise, well-drafted employment policies actually provide valuable guidance through difficult to navigate situations, while limiting downside risks to the company, as well.
This article, the fourth in Extra Crunch’s exclusive five-part “Startup Law A to Z” series, follows previous articles on customer contracts, intellectual property (IP) and corporate matters. This series is calculated to provide founders the information needed to assess legal risks in the areas common to most startups.
After reading this article, or other “Startup Law A to Z” articles, should you identify legal risks facing your startup, Extra Crunch resources can help. For example, the Verified Experts of Extra Crunch include some of the most experienced and skilled startup lawyers in practice today. So use these resources to identify attorneys focused on serving companies at your stage and then reach out for further guidance in the particular issues at hand.
The Employment Law checklist:
Employee vs. independent contractor classification
- Payroll Taxes and Payroll Providers
- Federal Classification: 21-Part Test
- State Classification: Various tests, e.g., Dynamex in California
- Intentional vs. Unintentional Misclassification and Penalties
Minimum wage and hour laws
- Application to founders
- Federal Fair Labor Standards Act (FLSA)
- State Laws
Meal and rest breaks, vacation pay
- Federal Fair Labor Standards Act (FLSA)
- State Laws
Deferred compensation
- Rule 409A
- Founders
- Employees
Sexual harassment, discrimination, and related claims
- Federal:
- Civil Rights Act of 1964
- Age Discrimination in Employment Act of 1967 (ADEA)
- Americans with Disabilities Act of 1990 (ADA)
- Equal Pay Act of 1963
- Genetic Information Nondiscrimination Act of 2008
- State Laws
- Employee Handbook
- Documentation and Investigation
Work authorization / immigration
- Form I-9 (Employees) and W-9 (Independent Contractors)
- For Temporary Workers:
- Visa Waiver Program
- B-1
- Employee Visas:
- H1-B
- L-1
- O-1
- Students:
- F-1 with OPT STEM Extension
- Other Visas:
- EB-5
- E Visas (E-1, E-2, E3)
Employee vs. independent contractor classification
One of the biggest employment law issues that startups get wrong, often willingly, is “employee” versus “independent contractor” classification. For employees, a startup must withhold and pay federal, state, and local income taxes, state disability, and payments under the Federal Unemployment Tax Act and Federal Insurance Contribution Act (i.e. Social Security and Medicare), not to mention contributions for federal and state unemployment and workers compensation insurance. Given this complexity, startups should absolutely hire a payroll provider to help manage the process, such as ADP, Gusto, Paychex or Quickbooks.
Of course, all of this gets expensive. Instead, far too many early-stage startups simply hire “independent contractors” to avoid everything mentioned above, often misclassifying these workers in the process, whether under federal law, state law, or both.
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