Immigration Solutions for Entrepreneurs and Startups
Even though the United States does not have a designated visa for startups, founders and startup owners have many options to live, work and bring their employees to the United States.
When looking for the right immigration solution for your startup, you should consider these top options:
Before moving to the U.S., you would most likely want to visit and create the foundation for your startup. The B-1 visa is ideal for entrepreneurs who wish to come to the U.S. for short business trips to build their startups.
This visa does not permit actual work. Entrepreneurs visiting with this visa can participate in business activities such as meeting with investors, consulting with business associates, negotiating contracts, traveling to business conventions, and participating in short-term training. It works just as well for those planning to join an incubator, accelerator, or attend a relevant conference.
The L-1A is a non-immigrant visa for intracompany transferees who work in managerial or executive positions in a company located outside the United States. It allows U.S. companies to obtain authorization for qualified employees from their foreign branches to come and work in the United States.
The L-1A visa is also suitable for foreign startup owners seeking to expand their business to the U.S. The L-1A visa allows the company to set up its U.S. operations with a specific plan and even bring high-level managers from other countries. To use this visa to open a U.S. operation, you will need to show a viable business and that it will be able to support the applicant within one year.
The main benefit of this visa is that it is available year-round and has no minimum education requirement. The spouse of the visa applicants can also accompany them and work in the U.S. It has a maximum of 7 years but opens a path to a permanent residency (green card).
The main limit of the L-1 is that it allows the visa holder to work only for the specific L company. No other endeavors are permitted.
Probably the most famous non-immigrant visa, the H-1B nonimmigrant classification allows U.S. employers to hire foreign workers for specialty jobs that require a bachelor’s degree or equivalent. This visa includes engineering, finance, business management, and many more occupations. The authorized stay for the H-1B visa is three years, extendable to six years, after which the visa holder may need to re-apply.
The main issue with this visa is that a startup without funding and under the founder's control would not be allowed to use it. If the founder can be fired by having a board of directors and already has funding, they can apply for the H-1B.
Another hurdle is that there is a lottery involved. A founder with a bachelor’s degree will compete with others for a limited number of spots. The application opens every year in April, and if approved, the applicant can begin working in October of that year.
The E-2 nonimmigrant classification allows a national of a treaty country (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.
This investment typically falls between $100,000 and $1 million. However, a lower investment might satisfy the requirement. The money must be invested in the endeavor and can not just be deposited in a bank account.
Under the E-2 visa, the investor must hold managerial-level or higher positions in the company. Certain employees of such a person or a qualifying organization may also be eligible for this classification. Thus, the founder can bring co-workers from his original country to work as E-2 employees for his E company.
The negative part about this option is that dual intent is not permitted. Thus, there is no direct path to citizenship. However, obtaining a green card following the E-2 status is possible.
Another important consideration is that at least 50% of the ownership must be held by – nationals of the treaty country to qualify. If, later on, this ownership is diluted and goes below the required 50%, then the E-2 visa holder will no longer be eligible for it.
An O-1 nonimmigrant visa is a good option for founders with extraordinary abilities in the sciences, technology, arts, education, or business and who have been recognized nationally or internationally for those achievements.
It is an option to consider if a startup owner happens to be extraordinary, which means that he has documented expertise and is among the top-tier specialists in his field. The candidate will need to meet three of eight criteria. Venture-backed founders will usually meet the high remuneration and critical employment criteria. Those who participate in selective accelerator programs may also meet the criteria of membership in an organization that requires outstanding achievements.
This visa requires a petitioning employer. Thus, for the startup owner to qualify for it, there will need to be a created business in the U.S.
One benefit of this visa is that processing times are not very long, and premium processing is available. It also allows the visa holder's spouse to live and work here. And although it is not categorized as a dual intent visa, it can lead to a green card, usually under the EB-1A category.
Immigrant Visas (Green Card)
EB-1A Green Card
You may be eligible for an employment-based, first-preference immigrant visa (green card) if you are a noncitizen of extraordinary ability, an outstanding professor or researcher, or a multinational executive or manager.
This immigrant visa is similar to the O-1 nonimmigrant visa category, but there is higher scrutiny and additional requirements to qualify. The main benefit is that you can self-petition (no employer petitioner is required), and premium processing is still available.
EB-2 with NIW Green Card
The EB-2 immigrant visa is the second green card category for those with a master's degree or substantial work experience in their field.
Those seeking the national interest waiver (NIW) request that the requirement for a job offer (and thus the labor certification), usually needed for the EB-2 green card category, be waived because it is in the interest of the United States. It is based on the promise of future contributions to the U.S., which can be economical, scientific, related to public health, etc.
The main benefit is that the startup owner can self-petition. The candidate will need to show the importance of their work and how their skills and knowledge will advance the startup plans in a way that others cannot.
This Immigrant Visa is not ideal for those from China or India as the waiting times are very long.
If you would like to learn more about this topic, please get in touch with our office.
*This article has been prepared for general information purposes only. The information presented is not legal advice, is not to be acted on as such, may not be current, and is subject to change without notice. Readers should contact their attorney to obtain advice concerning any particular legal matter.