Here’s another edition of “Ask 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.”
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I’m a startup founder in Berlin. I just returned from a visit to Silicon Valley where I met with a new customer. On the trip, I realized I need to be based in the U.S. to grow our base with U.S. customers.
What are the best visa options for me and my family? Will any of them allow my husband to work and continue his career?
— Seeking Scale
Hey there, Seeking!
Kudos to you on your business successes so far — and for your courage to take the next big leap to relocate to the U.S.! I’m honored that you reached out as you and your family begin your journey. I’ve got you!
You may be able to avoid having to go through an in-person consular interview for L-1 or O-1 visas if you apply now because until the end of this year, the Department of State has given consular officers the discretion to waive the visa interview requirement for certain work visas if the beneficiary was previously issued a visa and has never been refused one.
Consult an immigration attorney who can guide you to the best immigration options for your and your family based on your circumstances, timing and goals. There are a variety of options that might apply to you, based on various factors such as having a co-founder in a specific role or your citizenship in certain countries, but for now let’s dive into two of the visa options for you and your family so you can compare the general pathways!
L-1A is a top option
If you have worked for your startup for at least 12 continuous months in the past three years and can document your employment through payroll slips or tax documents, your startup can file for an L-1A visa for intracompany transferee executives or managers for you to come to set up an office in Silicon Valley.
To get an L-1A visa to open a new office in the United States, your company will need to sponsor you for the visa and show that you’ve secured a physical office location. Your company may also submit business plans, growth models, and organization charts. If you’re setting up a new office in the U.S. and are approved for an L-1A, that type of visa will can be initially valid up to one year. To extend the L-1A beyond that, you need to show that your U.S. business met your growth models and that the business is viable.
If your startup applies for an L-1A on your behalf while you’re in your home country, once the petition is approved, you will need to apply for a visa at a U.S. embassy or consulate. Consular posts have the discretion to waive interviews on a case-by-case basis at least through the end of 2023.
Some people visit the U.S. first on ESTA or a B-1 business visitor visa to secure an office and meet with prospective customers. It’s crucial to keep in mind that the B-1 is not a work visa, so while working in the U.S. is not allowed, you can perform some business activities, such as participating in meetings and signing a lease or other agreements. When you have an office and meet all the other requirements of the L-1A, your startup can petition you for an L-1A.
The B-1 visa is good for six months initially (ESTA is valid for only 90 days at a time) and can be renewed once from the U.S. for another six-month period if necessary. Premium processing is available for the L-1A, which means for a fee, U.S. Citizenship and Immigration Services (USCIS) will either decide on your case or issue a request for evidence within 15 days.
If your husband wants to accompany you to the U.S. to simply apply and interview for jobs while you scout for office space, he can enter on ESTA or apply for a B-1 visa as well. The B-1 and the B-2 visitor visa for pleasure are issued together, so it’s crucial that you and your husband let the U.S. immigration officials know, particularly at the airport, that you will be conducting business while in the U.S. Failing to do so may put your ability to stay in the U.S. and any future visas and green cards at risk.
The spouse and dependent children of L-1A visa holders are eligible for an L-2 visa. As an L-2 visa holder, your husband will be eligible to work. Since 2021, individuals who have an L-2 visa no longer have to apply for or renew their employment authorization document (EAD), otherwise known as a work permit. The USCIS will issue Form I-94 listing “L-2S” when granting your husband a status change to an L-2. That’s considered equivalent to an EAD card and it’s a great benefit for families!
The maximum stay in the U.S. on an L-1A visa is seven years. The L-1A offers a path to the EB-1C green card for multinational executives and managers. The requirements for the EB-1C are similar to those of the L-1A: Your company must sponsor you, and you must have been employed in the U.S. as an executive or manager for at least one year.
O-1A is an option, but . . .
If the L-1A is not an option for you, we’ve had a lot of success helping founders get an O-1A extraordinary ability visa. But keep in mind that unlike the dependent spouse of an L-1A visa holder, the O-3 dependent spouse of the O-1A visa holder is not eligible to work. However, your husband can work if he finds a job with his own employer willing to sponsor him for a work visa.
If you pursue the O-1A, it’s easier for your company to qualify for an L-1A, but the overall bar for your accomplishments is higher. However, I often find that most startup founders with a product, perhaps some funding, and some initial traction can easily qualify. To qualify for the O-1A, you must demonstrate at least three of eight criteria, such as receiving international or national awards; exclusive, invitation-only membership in organizations; and being featured in professional, trade or major media. Check out this previous Ask Sophie column in which I dive into how to meet each of the eight O-1A criteria. Premium processing is also available for the O-1A.
Because the EB-1A extraordinary ability green card has many of the same criteria as the O-1A, the O-1A is a fairly easy reach to an EB-1A or some founders pursue an EB-2 NIW if their wait time is acceptable.
E-2 is also an option, but . . .
The E-2 treaty investor visa enables international founders whose home country has a trade and commerce treaty with the U.S. — as Germany does — to live and work in the U.S. while investing substantial capital to build a business here. (The U.S. Department of State maintains a list of treaty countries.) But keep in mind that at least half of your U.S. business must be owned by people or companies from your country of citizenship to maintain E-2 status, which gets tricky particularly if and when your startup begins raising funds.
Although the E-2 requirements don’t specify how much capital you must invest to build your U.S. business, immigration officers look for large investments in office space, equipment and inventory, somewhere in the $100,000 range. That can make it difficult — but not impossible — for startup founders to qualify for the E-2. While the E-2 does not specifically require job creation, immigration officials may consider your U.S. business to be too “marginal” without it.
Another major factor is that the E-2 visa application process occurs directly at the consulate, and there is no option for premium processing if you are seeking a multiple entry visa in your passport.
The spouse of an E-2 visa holder is eligible to apply for an EAD. Like the L-2 visa holders, E-2 dependent visa holders automatically have work authorization with their visa and will receive a Form I-94 that serves as proof they are authorized to work.
Like the O-1A, there’s no limit on the number of times the E-2 visa can be extended. However, for the E-2, immigration officials will want you to demonstrate that you still maintain a residence and ties to your home country and intend to eventually return there. This is called non-immigrant intent, and immigration officials will want to see that you do not intend to and have no desire to remain in the U.S. permanently. In contrast, the L-1A and O-1A visas allow you to pursue a green card (permanent residency).
Immigration officials heavily scrutinize both the L-1A and E-2 visa applications, so I want to gently remind you how important it is to work with an immigration attorney to present a strong case whatever route you decide to take.
Enjoy your journey!
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Sophie Alcorn, 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.
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!