The Entrepreneur’s Guide to U.S. Visas

[This article was originally posted by One Way Ventures on Medium.]

Which is harder: starting your own company, or getting a visa that will allow you to stay in the U.S. and work for it? At One Way Ventures, one of the questions we are often asked by entrepreneurs is what their options are in terms of work visas and immigration. While there is no visa specifically designated for startup founders, there are numerous avenues entrepreneurs can take in order to obtain work authorization status in the U.S. That’s why we teamed up with one of our portfolio companies, LegalPad, to create this introductory guide for entrepreneurs navigating the U.S. immigration and work visa process.

In the past, One Way Ventures has had the most success with O-1A visas, but there are several other similar options that may be better for you or your employees. The main ideas to keep in mind when navigating your visa options are to start early, stay on top of your status, and employ an expert before making any decisions. We have never had to pass on an investment because of a visa issue, so don’t get discouraged–there is always a way!

In the table below we give you a quick overview of the currently available visa options, and underneath we outline each option in further detail.

*This information is up to date as of June 2019 and is subject to change based on current U.S. immigration law. Please note that this article is not a substitute for legal advice, as obtaining legal work authorization status in the U.S. is a complex undertaking and requires a trained professional to navigate. We recommend checking out Legalpad–they make this process easy for you so you can focus on your work.

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B-1

Who: Individuals who would like to conduct business in the U.S. on a temporary basis

This might be for you if: You have already established your startup abroad and would like to establish an office in the U.S. on a temporary visit or raise funding.

What: Allows an individual to participate in business activities in the U.S. for up to 6 months at a time. This could mean consulting with business associates, meeting with investors, negotiating a contract, interviewing prospective employees, or securing office space. You cannot work in the U.S. on this visa.

How: You must prove that you only plan to stay in the U.S. temporarily, have the intention of returning back to your home country, and have sufficient funds to do so.

Employer Offer Required: No

Length of Stay: 6 months initially; can extend

Type of Visa: Non-immigrant (Business Visitor)

Standard Processing Time: Anywhere between a couple of days to several months, depending on wait times at the local consular post.

Premium Processing Available: Not applicable, because you get this from the consulate.

Things you should know: You cannot receive payment from a U.S. source or perform hands-on work while on this visa (temporary professional services only).

F-1 OPT

Who: International students

This might be for you if: You are studying a STEM subject at a U.S. University on an F-1 and would like to create and work at your own startup during or after graduation.

What: Allows students on an F-1 Visa to work in the U.S. for 1 year during the school year or after graduation (in their field of study). If you are earning a STEM degree, your work authorization can be extended for up to 2 years (so you can stay for a total of 3 years).

How: After completing your first academic year, you must request that a school official recommend the OPT. Then you can file with USCIS.

Employer Offer Required: No

Length of Stay: 1 year for a non-STEM degree; 3 years with a STEM degree

Type of Visa: Non-immigrant (Student)

Standard Processing Time: 3–4 months

Premium Processing Available: No

Things you should know: It’s a good idea to check in with your school’s International Scholars Office every year to make sure everything is okay. Schools sometimes make mistakes they are reluctant to admit, so it’s important to stay on top of your status. Two extra years for a STEM major might not sound like much, but it can give you time to sort out your long term plan.

O-1A

Who: Individuals with extraordinary ability

This might be for you if: You have raised funding for your startup and been through an accelerator.

What: Allows individuals with extraordinary ability in the sciences, education, business, or athletics to obtain a visa to work in the U.S. on a temporary basis. This is the non-immigrant equivalent to an EB-1 green card, and it is slightly easier to get.

How: You will have to demonstrate extraordinary ability by proof of business awards or prizes, published papers or books, media recognition, etc. You must meet at least 3 of the 8 required criteria in order to prove you are in the top 1 percent of your field.

Employer Offer Required: Yes (or agent/manager)

Length of Stay: 3 years initially; can extend indefinitely as long as you’re still operating the business

Type of Visa: Non-immigrant

Standard Processing Time: 15–90 days

Premium Processing Available: Yes

Things you should know: This is one of the most flexible visa categories. The only downside is that it does not offer work authorization for your spouse.

H-1B

Who: Workers in specialty occupations (need B.A./B.S.)

This might be for you if: You meet the minimum salary requirement and have a degree in a specialty that directly aligns with the job you are being hired to do.

What: Allows companies in the U.S to employ foreign workers in jobs that require a specialized range of knowledge or degree. There are only 85,000 given out a year via an annual lottery, 20,000 of which are reserved for those with U.S. master’s degrees, so the odds of getting this visa are normally less than 50 percent.

How: Apply for a new H-1B within the lottery window, which is the first week of April. If you already have an H-1B, you can transfer your H-1B to your startup.

Employer Offer Required: Yes

Length of Stay: 3 years initially; can extend for an additional 3 years; can remain in the U.S. while your green card is processing.

Type of Visa: Non-immigrant

Standard Processing Time: 15–180 days

Premium Processing Available: Yes

Things you should know: Even if you win the H-1B lottery, your application can still be denied. The denial rate has almost doubled in recent years, so you will likely need to spend some significant time preparing for a request for evidence.

Cap-Exempt H-1B (EIR)

Who: Anyone working at a cap-exempt organization, such as institutions of higher education; non-profit entities which are “affiliated with” institutions of higher education; non-profit research organizations; and government research organizations.

This might be for you if: You have a few hours a week to dedicate to working at a cap-exempt organization–namely a U.S. university with a Global EIR program (this is a great plan B if you didn’t win the H-1B lottery).

What: Congress has designated four different agencies to always be able to sponsor foreign nationals for H-1B visas without the lottery, which includes universities. There are a handful of universities across the U.S. that will sponsor your H-1B Visa if you work part-time as their Entrepreneur in Residence. This visa is cap-exempt, so it is not subject to the lottery.

How: Apply to be an EIR at a university near you that will sponsor your cap-exempt H-1B and commit to working there part-time while you build your startup on the side. Another option to consider is Open Avenues Foundation, which works to employ foreign founders and critical employees who lost the H-1B lottery. If you have around 5 hours per week to work with university students leading experiential learning projects within your field, you can receive an immediate cap-exempt H-1B visa with your full-time employer at any point throughout the year.

Employer Offer Required: Yes

Length of Stay: 3 years initially; can extend for an additional 3 years; can remain in the U.S. while your green card is processing.

Type of Visa: Non-immigrant

Standard Processing Time: 15 -180 days

Premium Processing Available: Yes

Things you should know: As soon as you have a part-time cap-exempt H-1B, any company, including your startup, can piggyback on top of that and immediately get you a full-time cap-exempt H-1B visa that is not subject to the lottery.

L-1A

Who: Intracompany Transferees (executives or top managers)

This might be for you if: You have already established a startup abroad, you’ve been working there for a year or longer, and you want to open an office in the U.S.

What: Allows companies outside the U.S. to transfer an employee to a parent, subsidiary, or sister company in the U.S.

How: The “employee” being transferred must have worked for at least one year at the foreign office. If you do not yet have a U.S. office, you can fulfill this requirement by opening one yourself. However, you must prove you have the funds and infrastructure to maintain it.

Employer Offer Required: Yes

Length of Stay: 1–3 years initially; can extend for an additional 3 years; can remain in the U.S. while your green card is processing.

Type of Visa: Non-immigrant

Standard Processing Time: 15–180 days

Premium Processing Available: Yes

Things you should know: If the L-1A is right for you, it might be a better idea to start your company outside the U.S. and move to the U.S. a year later. Once your company has been in business in the U.S. for a year, it can sponsor you for an EB-1C green card.

E-2

Who: Entrepreneurs able to invest personal funds into a U.S. business

This might be for you if: You have a significant amount of money you are ready to invest in your startup and you are a citizen of one of a designated group of treaty countries.

What: Designed for entrepreneurs from one of a designated group of treaty countries who plan to invest in and work for a U.S. business (you cannot work anywhere else).

How: You must prove that the main purpose of your investment is to run or develop a U.S. business, that there is a risk of capital loss, that the investment will generate sufficient income, that it can employ at least 3 people, and that the company is majority owned by a citizen of your treaty country of citizenship. It is also very important to be able to clearly source your investment money.

Employer Offer Required: No

Length of Stay: 2–5 years initially; can extend indefinitely as long as the business is viable.

Type of Visa: Non-immigrant

Standard Processing Time: 15–90 days

Premium Processing Available: Yes

Things you should know: If you’re married, your spouse gets E-2 status too, so consider who might be the better applicant when applying for this visa because the applicant will be tethered to the business.

EB-1A

Who: Individuals with extraordinary abilities

This might be for you if: You are a founder who has raised funding and been through an accelerator

What: This is essentially the green card version of the O-1A. It is for people able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through national or international acclaim. Your achievements must be recognized in your field through extensive documentation.

How: You must meet at least 3 out of 10 criteria provided by USCIS, or prove an extraordinary single achievement. This may be acceptance into a top-tier U.S. accelerator program such as Techstars or Y Combinator, an investment from a well-known venture capital firm, ownership of a valuable patent or copyright, coverage by a top-tier U.S. publication, receipt of prizes or awards for excellence, etc.

Employer Offer Required: No

Length of Stay: Indefinite

Type of Visa: Permanent Residency (Green Card)

Standard Processing Time: 15–180 days; additional 6 months to issue a green card

Premium Processing Available: Yes

Things you should know: The priority dates are generally more up to date than other green cards, which will speed up the timeline to a green card for nationals of certain countries otherwise subject to wait times. You can apply for citizenship after 5 years with this green card.

EB-2 NIW (National Interest Waiver)

Who: Individuals with exceptional ability

This might be for you if: You do not have a strong enough track record to qualify for the extraordinary ability EB-1 green card but are still able to demonstrate a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

What: Usually granted to those who have exceptional ability in the sciences, arts, or business, and whose employment in the United States would greatly benefit the nation. Candidates can waive the labor certification requirement (which normally takes around 6 months).

How: You must meet at least 3 out of 10 criteria provided by USCIS to prove your exceptional ability. This means providing evidence that your work has substantial merit and national importance, you are well-positioned to advance this work and that waiving the labor certification would benefit the U.S. (The U.S. would benefit more from you doing the work than an American).

Employer Offer Required: No

Length of Stay: Indefinite

Type of Visa: Permanent Residency (Green Card)

Standard Processing Time: 180–365 days

Premium Processing Available: Yes

EB-5

Who: Entrepreneurs able to invest $500k — $1M into a U.S. commercial enterprise

This might be for you if: You have $500k — $1M to invest in a business

What: Designed for individuals who are able to invest a minimum of $1M into a U.S. commercial enterprise, and create 10 full-time jobs for at least 2 years. If the enterprise is in a high-unemployment or rural area, the minimum investment drops to $500,000.

How: You have to submit documentation to the government, including a business loan agreement, investment agreement, a business plan, and copies of job advertisements.

Employer Offer Required: No

Length of Stay: Indefinite

Type of Visa: Permanent Residency (Green Card)

Standard Processing Time: 1–1.5 years

Premium Processing Available: No

Source: USCIS

A big thanks to Legalpad for making this guide possible!

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