Navigating the plethora of visa options in the United States can be a daunting task. Here, we've put together some of the more popular options for startups.
The O-1 visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. It's a nonimmigrant visa, which means the visa is temporary (3 years) but can be extended indefinitely. The key here, however, is that you cannot sponsor yourself for the O-1. Your company can sponsor you as long as you can prove the existence of an "employer-employee" relationship and the company's ability to hire or fire you. As an entrepreneur, your company should be structured so that the company can sponsor you as an employee. In addition, you’ll want to be sponsored as someone with proven talent and expertise in your particular field of business.
The H-1B is another nonimmigrant visa option for a foreign worker in a "specialty occupation." In order to qualify for sponsorship, the employee must hold a position that requires at least a bachelor’s degree or equivalent experience in the field. This is a popular visa in the tech industry, and jobs in mathematics, engineering, and technology often qualify. Similar to the O-1, you cannot sponsor yourself. Your company can sponsor you if you can prove the existence of an employer-employee relationship and the company's ability to hire or fire you.
In order for a H-1B visa to be approved, you must establish that the company has the necessary cash flow to pay the H-1B employee the average wage for the role. For early startups that aren’t profitable yet, this could be achieved by filing information about any funding rounds.
Once approved, an H-1B visa allows employees to stay and work in the U.S. legally for up to three years, which may be extended for a maximum of six years. One consideration for the H-1B visa is that there is a cap on recipients, so even if you qualify, there is no guarantee you'll receive the H-1B visa. Once you do make it through the cap, however, the H-1B is "portable." This means that it can be transferred to other employers if necessary.
An L-1 visa is available to someone who is an executive or manager or who has specialized knowledge and is being transferred from a foreign company to an affiliated U.S. branch. The person must have been working for the foreign organization for at least one continuous year within the three years immediately preceding the L-1 application. Proving executive, managerial or specialized knowledge can be challenging and L-1s are strictly scrutinized by USCIS, so it is critical for the application to be well-prepared and thorough. You can be transferred from a foreign parent company to a new office in the US, as long as both companies have a qualifying corporate relationship (parent, subsidiary, branch, affiliate, office, etc.)
E-2 Investor Visa
An E-2 Visa is another non-immigrant visa that allows entrepreneurs to make a substantial investment in a business (including their own startup) based in the U.S., and in turn, allows them to work for a two year period in the U.S. with the company. This visa can be renewed indefinitely. You must be from a country that the U.S. has an existing treaty with in order to qualify.
According to USICS, the invested amount must be “a substantial amount of capital in a U.S. business.” Although, there is no official minimum or maximum investment amount, approved applications typically fall between $100,000 to $1 million. Speak with your experienced immigration attorney to determine whether the investment is substantial enough. The investment also can be in the form of a secured business loan so long as you are the principal borrower. You must also demonstrate that the investment will create jobs as well as profits.
If you are a citizen of Mexico or Canada, the TN visa allows you to work in the United States for a U.S. or foreign employer in one of the professional occupations listed in the North American Free Trade Agreement (NAFTA). Professionals in various fields, including information technology, engineering, finance, marketing, and consulting, frequently use the TN to work in the United States. In order to qualify for the TN visa, the applicant must have prearranged employment or a job offer waiting in the U.S. There is no limit to the extensions that a TN visa holder may be granted. Similar to the O-1 and H-1B, you cannot sponsor yourself for the TN. A company can sponsor you and TN visas are strictly scrutinized if you are stakeholder or have a high percentage of ownership in the US company.
As always, we recommend speaking with an experienced immigration attorney to discuss your options in more depth.
This post is for informational purposes only. For more information, please contact our office.