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Dear Sophie: Which immigration options allow me to launch my own startup?
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.”
Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.
Dear Sophie,
I’ve been working on an H-1B in the U.S. for nearly two years.
While I’m immensely appreciative of my company’s sponsorship and that I made it through the H-1B lottery and am working, I’m stuck in a rut. I really want to start something of my own and work on my own terms in the United States.
Are there any immigration options that would allow me to do that?
— Seeking Satisfaction near Stanford
Dear Seeking,
A couple of exciting immigration news updates to get us started today! In breaking startup founder news, U.S. Rep. Zoe Lofgren (D-CA) introduced the LIKE Act for startup founders in the House of Representatives last week. Below, we’ll share what this could mean for your startup aspirations. Also, U.S. Citizenship and Immigration Services (USCIS) conducted a second H-1B lottery because it didn’t receive enough H-1B petitions to meet the annual cap. So, if you or your employer were selected, be sure to file an H-1B petition by November 3.
Although job dissatisfaction and frustration on an H-1B can be normal, according to Edward Gorbis, there’s a lot you can do to take control of your U.S. immigration situation and go out on your own. I interviewed Gorbis for my podcast; he’s the founder of Career Meets World and a performance coach who works with immigrants and first-generation professionals to help them find fulfillment and thrive in their careers and life. Gorbis said that “once immigrants reach stability, they start to think, ‘Who am I, what do I value, what’s my core identity?’” It’s possible for any of us to retrain our brain for success.
Gorbis said that imagining overcoming the hurdles that stand in the way of doing the work that will fulfill you is the first step. So, here are some options that can help you imagine how to build the life of your dreams.
Become a founding CEO and raise $250,000
A great new option for aspiring entrepreneurs is International Entrepreneur Parole (IEP), a new immigration program in the United States that allows CEOs, CTOs and others to live in the U.S. and run their company for 2.5 years with an option for a 2.5-year extension. Your spouse can obtain a work permit.
How to qualify? You need to own at least 10% of a U.S. company, such as a Delaware C corporation registered in California. Ideally, you’ll want to show that your company bank account has at least $250,000 raised from qualified U.S. investors, but you can use other evidence to demonstrate that your company has the potential to grow rapidly and create jobs in the U.S.
A startup visa and path to a green card may be soon on the way for entrepreneurs and their crucial employees: Last week, Lofgren introduced the Let Immigrants Kickstart Employment (LIKE) Act. The requirements for the proposed startup visa are the same as for IEP but would allow a longer stay — up to eight years total if the startup creates jobs and generates substantial revenue.
I’m very proud to have aided in drafting the LIKE Act. It’s a thrill to see how my suggestions were included, such as making Startup Green Cards not subject to the visa bulletin, clarifying that you can seek consecutive Startup Visas from different companies, how to allocate employee visas to startups, ensuring the Startup Visa is a dual intent status, and adding premium processing. It was such a joy to be able to contribute ideas to this amazing process. I look forward to supporting this bill to become a law; please reach out to me if you want to support this worthy cause.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
See yourself at another company
There is technically no limit to how many H-1B employers you can have or how many — or few — hours you work in an H-1B position. So, think about other companies.
One option would be to have concurrent H-1Bs: Keep your current H-1B job for stability and start your own company, preferably with another individual or two, and have your startup sponsor you for an H-1B. Take a look at this Dear Sophie column for what to do before embarking on this path.
Another option would be to transfer your H-1B to another employer, or your own startup if you are going to work there. Since you already went through the H-1B lottery with your current employer, you will not have to go through the lottery process again for a second H-1B whether you choose the concurrent or transfer option.
Setting up a startup that can sponsor you for an H-1B is complicated, so I suggest you work with both a corporate attorney and an immigration attorney. Keep in mind that you will not be able to do any work for your startup until an H-1B with your startup has been approved, which is why having co-founders is helpful. Another reason is H-1Bs require an employer-employee relationship between a startup and the H-1B candidate. That means a co-founder — or the startup’s board — must supervise you and have the ability to fire you. Moreover, we often advise founders that it may be best to own less than a 50% stake in the startup when applying for an H-1B.
Consider a green card
If you end up pursuing concurrent H-1Bs, consider asking your employer whether it is willing to sponsor you for a green card. If that’s not the case, your startup can sponsor you for one, or you can self-petition for a green card:
- EB-1A extraordinary ability green card
- EB-2 NIW (National Interest Waiver) green card
- EB-2 green card for professionals holding advanced degrees
- EB-2 exceptional ability green card
- EB-3 green cards for skilled workers and professionals
All EB-2 green cards — except the EB-2 NIW — and the EB-3 green card require labor certification approval (PERM) from the U.S. Department of Labor. The two green cards that allow an individual to self-sponsor are the EB-1A and EB-2 NIW.
Imagine yourself doing gigs in your field
Many startup founders qualify for an O-1A extraordinary ability visa. However, you cannot have both an H-1B and an O-1A at the same time, so if your startup sponsors you for an O-1A, you will be required to leave your current H-1B job once an O-1A is approved.
An O-1A offers more flexibility than an H-1B. You can work for a single petitioning company or on multiple gigs through an agent. However, qualifying for an O-1A is more difficult than an H-1B. Resources, such as through my firm, support people with getting qualified. The one similarity with the H-1B is that you must show your startup and you have an employer-employee relationship.
Invest in your own company
The E-2 visa for treaty investors and employees is ideal for startup founders whose home country has a treaty of commerce and navigation with the U.S. Here is a list of treaty countries. For more details on E-2 visas for founders and employees, check out this previous Dear Sophie column and podcast episode.
Although there is no minimum dollar amount that a founder must invest in a startup to qualify for an E-2, we often advise founders to invest at least $100,000 to have a strong case. You cannot have both an H-1B and an E-2, so you will need to leave your current H-1B job if your E-2 is approved.
An immigration attorney can offer additional options based on your personal circumstances and legal advice tailored to you.
Enjoy the journey of building your dreams!
Sophie
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
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!
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Dear Sophie: Is it possible to expand our startup in the US?
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.”
Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.
Dear Sophie,
My co-founders and I launched a software startup in Iran a few years ago, and I’m happy to say it’s now thriving. We’d like to expand our company in California.
Now that President Joe Biden has eliminated the Muslim ban, is it possible to do that? Is the pandemic still standing in the way? Do you have any suggestions?
— Talented in Tehran
Dear Talented,
Yes, it’s possible! Unfortunately, yes, the COVID-19 pandemic is still making the immigration process a bit challenging, but remember, where there’s a will, there’s most often, in immigration law, a way.
On his first day in office in January, Biden rescinded the ban on visas for many majority-Muslim countries, including Iran. The ban had been in place since 2017 and nearly 42,000 visa applications were denied, according to the U.S. Department of State.
Biden also allowed the bans on the issuance of H-1B, L-1, and J-1 visas and green cards at U.S. embassies and consulates that the previous administration put in place last year to lapse.
That means international startup founders like you and other international talent living outside the United States can start thinking about obtaining these visas and green cards without necessarily requiring exceptions to do so. In a recent podcast episode, I talked about these and other immigration-related changes, as well as those promised by the Biden administration. Take a listen to find out more!
As you probably know, most travelers from Iran are currently not allowed entry into the U.S. because of the COVID-19 travel ban, and most U.S. embassies and consulates are not open for routine visa and green card application processing. Because the United States has not had an embassy or consulate in Iran since the Iran hostage crisis of 1979, you and your co-founders should find out which U.S. embassies or consulates are currently processing routine visa and green card applications — and are in countries that are not on the suspended entry list — and apply there. We’re still waiting for detailed information from the State Department on the equivalent of reparations for individuals who were affected by the Muslim ban.
In addition, I recommend that you consult with an experienced immigration attorney who can help you devise an immigration strategy for yourself, your co-founders and your families based on your personal and professional goals. Now, here are a few options for you to consider.
L-1A visa to open a U.S. office for your startup
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Dear Sophie: How will this election nail-biter affect immigration?
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.”
Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one or two-year subscription for 50% off.
Dear Sophie:
The last 24 hours have been a nail-biter; I feel powerless and I’m angry that we’ve come to this. I’m worried things won’t improve and I’m confused about where we even stand.
Sometimes I just feel so very, very tired of the struggle. I am just so ready to let go. I want to live in a world where we can create harmony, peace and opportunity for all. Can I still find that in the United States?
— Wanting in Walnut Creek
Dear Wanting,
I hear you.
The good news is that there is great potential, even as the world watches the U.S. presidential election results. If anything, what the last four years have taught me is that two clichés are really true: necessity is the mother of invention, and, where there is a will, there is a way. I can relate to many folks around the world because I know what it’s like to have the world of Silicon Valley feel so close, yet so far away, at a time when I felt powerless to make a difference.
Looking back over the past four years, amazing things have been possible for our clients and my team at Alcorn Immigration Law. I founded the firm out of my kitchen just years ago when my kids were toddlers. I would look out my kitchen window hand-washing tiny baby dishes. I can still remember the feeling of the suds on my fingers as I gazed longingly at the tall building on Castro Street in downtown Mountain View where 500 Startups used to sit on the top floor. YC was just down the street.
I felt so powerless. I desperately wanted to make the world a better place, and reaching the world of Silicon Valley, even though it was just past my backyard, seemed like getting to Mars.
From those humble beginnings to now, as I founded and bootstrapped Alcorn Immigration Law on my own journey of becoming a single mom, I know what’s possible, even during the last four years of the Trump administration. We’ve had amazing success — claiming thousands of victories in supporting companies, people and families to live and work legally in the United States. If I was able to grow my firm during the last four years, I know that it’s possible for anybody to follow their heart and succeed. It’s our human essence to long to be a creator in this world, and anybody can and deserves to make a difference.
And here is what else I know: immigration law is created by acts of Congress and signed into law by the president. Mere tweets may be intended to try to bend the rules, but they cannot break them. That is what democracy is about.
In democracy, we have agreed to abide by basic laws, such as the inviolable dignity of the human being and that we want to agree on procedures for how we make decisions, like the process of passing a law about immigration. Democracy is not about majority tyranny. Democracy is about the fact that we uphold a few principles and we agreed on a decision-making process. When Trump ignores our basic laws and he ignores our legal processes, democracy is in peril.
But democracy does not need to be disrupted, it only requires small adjustments to thrive. In any group it is possible to make jointly supported decisions, taking the needs and resources of all into consideration. “Although the world is complex and decision making is complex, the components of decision making are simple,” according to Richard Graf, founder of K-i-E. Simple tools like the DecisionMaker can allow a miracle to happen — in an environment of openness and anonymity, we can all safely share our needs and concerns so that proposals can be formed based on collective best practices, knowledge, experience, intelligence and intuition. Even if it’s a complex situation, the way forward can immediately become clear.
And in our democracy, the paths to live and work in the U.S. will always remain viable, even if we need to remove a branch or navigate around a new boulder. Here at Alcorn, despite the furor and fear-mongering present in the world surrounding immigration, we are continually securing real victories for our clients. Not a client yet? Global founders can still create a startup, pitch it to investors and secure pathways to live and work legally in the United States with visas, green cards and citizenship.
So I know this and will repeat: Whatever the election results, there will still be many ways for people to legally navigate the U.S. immigration process and access the opportunity and security of life here. For more insight on these ways, please join my Election Results Webinar next week.
In the meantime, here are my thoughts on how the election results will affect the future of U.S. immigration:
Looking ahead, if Biden takes the victory, he has pledged to undo all Trump-era immigration regulations in the first 100 days and support comprehensive immigration reform. He promised to promote immigrant entrepreneurship, which could finally mean a startup visa! He also wants to speed up naturalization, rescind the Muslim travel bans, pass legislation to expand the number of H-1Bs, increase the amount of employment-based green cards, exempt international STEM PhD graduates from needing to await a priority date, create a new type of green card to promote regional economic development and support immigrant entrepreneur incubators.
Alternatively, we can expect that a Trump administration would continue restricting immigration, leading to litigation and judges deciding the fate of many recent policies. We can foresee a continued COVID freeze on green card interviews at consulates.
Also, DHS recently announced its intent to remove the randomness from the H-1B lottery and prioritize the annual H-1B selection process from highest to lowest wage starting in spring 2021. I’m sure there will be litigation about this; in the meantime, Alcorn Immigration Law continues to recommend that all employers proceed with registering employees and candidates in the lottery as usual. These details will take time to shake out and we don’t want anybody to lose a chance at being selected.
In other updates, immigration is just continuing along and there is actually some great news for folks: The State Department recently released the November Visa Bulletin and it stayed the same from October. (If you think your priority date is current or may be current soon, please contact your attorney as soon as possible to discuss filing your I-485 this month to avoid the possibility of retrogression in December!)
And if you need the freedom to build your startup, but were told that you don’t yet qualify for an O-1A visa, EB-1A or EB-2 NIW green card, you can join me in Extraordinary Ability Bootcamp with promo code DEARSOPHIE to receive 20% off.
We’re optimistic about the future. Life always offers us opportunities to grow through contrast and uncertainty, and we remain passionate about our mission to create greater freedom, empowerment, knowledge and love in the world.
Sophie
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!
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Minimum investment for EB-5 investor green card expected to more than double
While not a startup visa, the EB-5 investor green card offers many entrepreneurs a path to a green card by investing money and creating jobs in the U.S. Under the EB-5 program, an entrepreneur’s family is also eligible for green cards.
Imminent regulatory changes to the EB-5 program are expected to make obtaining an EB-5 green card a whole lot more expensive. The minimum investment is anticipated to more than double to $1.35 million from the current $500,000. And with individuals from India expected to face a backlog for EB-5 green cards shortly, the opportunity to obtain an EB-5 green card at a relatively low cost and in a timely manner is closing.
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What everyone at a startup needs to know about immigration
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.
The immigration process in the U.S. has become a high-stakes undertaking for employers, workers, and entrepreneurs. Predictability has eroded. Processing times have soared. And any mistake or misstep now has dire consequences.
Over the past three years, immigration policies and procedures have been in a state of flux and the process has become more unforgiving for even the smallest mistakes. Putting your best foot forward is crucial. Employers and individuals need to formulate a long-term strategy and backup options to stay protected.
The increase in Requests for Evidence and the backlog for many visa and green card categories has meant longer waiting times. What’s more, the Trump administration’s recent decision to close all USCIS’s international offices—and shift that workload back to the U.S.—is expected to compound the backlogs and delays.
We are seeing these issues affect startups every day. My law firm works with hundreds of startups every year to help them and their employers figure out their immigration paperwork. The overall piece of advice we give is to decide on a specific goal based on a deep understanding of the company and the individual and by examining the options strategically.
Then, you can figure out the right approach for a visa, green card, or citizenship application. Regardless of my personal interest in the matter, now more than ever, I recommend consulting with an experienced immigration attorney who can handle the process with integrity, creativity, compassion, and rigor.
What employers should know
The new normal for immigration means increased employee recruiting and retention costs for employers. However, hiring immigrants remains possible.
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Economic development organizations: good or bad for entrepreneurial activity?
Bill Baumel
Contributor
Contributor
Bill Baumel is Managing Director at the Ohio Innovation Fund. After twenty years in Silicon Valley – 4 public companies and 10 major acquisitions – Bill came home to the Midwest creating OIF, whose 14 companies have attracted partners such as Microsoft, Facebook, SAP, and Sanofi, providing SaaS, cyber, AI/ML and med tech solutions to a majority of the Fortune 500.
In developing VC markets such as the Midwest, some may think that funding from the government or economic development organizations are a godsend for local entrepreneurs. Startups are often looking for all the help they can get, and a boost in funds or an attractive set of economic incentives can be perceived as the fuel they need to take the next step in their growth journey.
While this type of funding can be helpful, a startup should ensure that funding from these sources is not a double-edged sword. The biggest positive, of course, is the money, which can help startups with product development, hiring, marketing, sales and more. But there can also be certain restrictions or limitations that are not fully understood initially—these restrictions could hinder growth at an inopportune time later on.
The inevitable question, then, is should startups consider partnering with the government or various economic development groups as they look to get off the ground? Let’s take a closer look.
What Local Economic Development Organizations Have to Offer
Today, particularly in the Midwest, it’s common for state and local governments to offer startups incentives such as tax exemptions or grants in an effort to keep local businesses around and also attract companies from other regions.
So how do these incentives work? When it comes to tax credits or exemptions, local governments are sometimes willing to provide these incentives if a startup can demonstrate how paying lower taxes will benefit the wider community.
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Trump might kill next month’s new startup visa before it takes effect
According to a report by the San Francisco Chronicle, the Trump administration may rescind or indefinitely delay the International Entrepreneur Rule, widely regarded as the U.S. version of a startup visa. Overseen by the Department of Homeland Security the rule is intended to “increase and enhance entrepreneurship, innovation, and job creation in the United States.” Anxiously… Read More
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