Ask Sophie: How can I move to the US to join my co-founder?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

For the past five years, I have been running the Boston-based biotech startup I co-founded while living in Pakistan while my co-founder has been living in Boston. Now I want to move to the U.S. to expand our business. What options are available to me?

— Plucky Pakistani

Dear Plucky,

I’m appreciative of all the international founders like you who come to the U.S. to innovate, create jobs, and contribute to the economy! And kudos to you! It sounds like your biotech has hit the sweet spot to sponsor you for a visa as well as a green card if you want to stay in the U.S. permanently.

Be sure to work with an immigration lawyer, who can guide you and your startup through this process and set up your startup for success in sponsoring international talent. An immigration lawyer can also prepare you for an in-person interview at the embassy or a consulate in Pakistan if you are required to have one. You may be able to get an interview waiver for the visa options below if you apply before the end of the year. Until then, consular officers have the discretion to waive the visa interview requirement for certain work visas if you were previously issued a visa and have never been denied one.

Now, let’s dive into your best options.

L-1A visa

The L-1A visa for intracompany transferee executives and managers is a great option for startup founders who are either looking to set up a new office in the U.S. or — like you — want to move to the U.S. to work from an already existing office.

Your startup must meet certain requirements to sponsor you for the L-1A. Your company will need a physical office location in the U.S. if it doesn’t have one already. Unlike other visas, for an L-1A petition it’s actually required and can also serve as evidence of business viability. Your company will likely also need to submit business plans, growth models, and organization charts.

For the L-1A, you must have been working for your startup in Pakistan for at least one continuous year within the past three years for a related company, have an executive or managerial position at your startup’s U.S. office, and make decisions and supervise employees.

If the U.S. Citizenship and Immigration Services (USCIS) approved you for an L-1A, it will be good for three years initially. You can renew your L-1A twice for two years each, which will give you a maximum stay of seven years as an executive in the U.S.

L-1A corollary green card

If you get an L-1A and want to remain in the U.S. permanently (i.e., get a green card), you’re in luck! The L-1A offers a direct path to the EB-1C green card for multinational executives and managers. The requirements for the EB-1C are similar to those for the L-1A: Your company must sponsor you, and you must be employed in the U.S. as an executive or manager at your startup for at least one year.

Startup founders born in India or China shouldn’t wait too long before applying for an EB-1C green card. That’s because individuals born in those two countries face waiting for a green card number to become available, and the L-1A cannot be renewed beyond seven years.

Individuals born in India and China must wait for green card numbers in the EB-1 category to become available, so they have a July 1, 2019, and August 1, 2022, cutoff date in October, respectively. That means, for instance, that only individuals born in India who have a priority date (the date their I-140 green card petition was sent to the USCIS) of July 1, 2019, or earlier can file their I-485 to adjust status, which is the final step in the green card process.

Currently, individuals born in Pakistan or any country other than India or China can file an EB-1 I-140 petition and I-485 application to register permanent residence or adjust status together because green card numbers are available to those individuals in the EB-1 category.

Let me dive into an alternative: the O-1A extraordinary ability visa.

O-1A visa

The bar for qualifying for the O-1A extraordinary ability visa is much higher than for the L-1A. For the O-1A, you must have won a major international award, such as a Nobel Prize, Pulitzer, Oscar, or Olympic medal, or meet at least three of the following:

• You’ve won nationally or internationally recognized awards, such as VC funding.
• You’ve been invited to join a group that requires outstanding achievements.
• You and your work have been featured in professional or major trade publications or major media.
• You have judged the work of others in your field either as an individual or as part of a panel.
• You have made significant contributions to your field, such as patents that have been used by others.
• You have written book chapters or articles for scholarly journals, professional or major trade publications or major media.
• You are a critical employee of an organization with a distinguished reputation.
• You have a high salary compared to others in your field and geographical area.

I delve into more detail about the type of evidence that the USCIS likes to see for each of the criteria in this column.

While the L-1A and O-1A are both work visas that require your startup to sponsor you, there are distinct differences between the two: Unlike the L-1A, there is no limit on the number of times the O-1A can be extended and no requirement for your startup to have a physical office in the U.S.

Individuals with L-1A status who were born in India or China and who may not get a green card before their L-1A expires should strengthen their qualifications to change their status to an O-1A to preserve optionality.

O-1A corollary green card

Like the L-1A, the O-1A offers a direct path to an EB-1A extraordinary ability green card.

While the O-1A visa and EB-1A green card have similar qualifying requirements, the EB-1A green card has a longer overall processing time, more stringent standards, and requires more documentation. For an EB-1A, you must have won a major internationally recognized award (Nobel, Pulitzer, etc.) or meet at least three of 10 criteria. Unlike the O-1A visa, the EB-1A green card does not require a job, so it is one of two green cards that enables beneficiaries to self-petition.

Take a look at this previous column in which I discuss in more detail how to qualify for the EB-1A.

E-2 visa

The E-2 treaty investor visa offers a great option for international founders whose home country has a trade and commerce treaty with the U.S. The U.S. Department of State maintains a list of treaty countries, which includes Pakistan. The E-2 enables international founders to live and work in the United States while investing substantial capital to build a business here.

For a founder to qualify for an E-2 visa as an investor or essential employee, at least half of the U.S. business must be owned by people or companies from your country of citizenship. This can get complicated for startups if they are planning to raise funding from U.S. investors. Talk to a lawyer about your global corporate structure and your fundraising plans to confirm.

Although the E-2 does not require a minimum amount of capital to be invested into the U.S. business, immigration officers look for large, upfront investments in office space, equipment and inventory, usually in the $100,000 range. We have helped clients succeed in qualifying for an E-2 with a transfer of valued intellectual property to their U.S. company.

While the E-2 does not specifically require a U.S. business to create jobs in the future, having U.S. employees or having a business plan that includes hiring in the U.S. can help with the approval of your E-2.

Although there’s no limit on how many times your company extends your E-2 visa, immigration officials might want you to demonstrate that you still have ties to your home country, such as a residence, and intend to eventually return there. This is called non-immigrant intent, and officials will want to see that you do not intend to and do not have hopes of remaining in the U.S. permanently. However, it is still possible to seek a green card from E-2 status.

So while the E-2 does not offer a green card corollary and individuals on an E-2 cannot intend to stay permanently in the U.S. by pursuing a green card, we have helped E-2 founders find ways to successfully navigate the green card process. The EB-1A green card is a common route for international founders.

Thanks for reaching out to me! You’ve got this!

— Sophie

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