The startup founder’s guide to U.S. immigration

Written by Elizabeth Jamae, Partner at D’Alessio Law Group

Before moving to the U.S. it is important to understand whether it makes sense for your company. You will need to understand all aspects of expansion, from U.S. corporate law, cross-border tax compliance, and immigration. Pulling together a group of professionals in these key areas will make your expansion to the U.S. a success. Professionals that routinely work with startups and scaleups, should typically work with fixed fees and understand the value in collaborating as a team.

Some of the important questions you should ask yourself before deciding to expand to the U.S. are:

  • What are the cost/overhead of operating in the U.S. compared to your home country?
  • If you are setting up a second office, how will a distributed team impact your operations?
  • What are the tax consequences of operating in the U.S?
  • At what point do we move staff from the headquarters to the U.S?
Daniel Glazer, Partner at WSGR, has put together an great top ten guide to U.S. expansion. It can be found here. This list addresses all the key factors to consider when expanding, which includes U.S. immigration.
More than half of U.S. startups in the U.S. are founded by foreign nationals, according to the Wall Street Journal. In this article, we will discuss the U.S. visas founders and human resource teams should understand when expanding to the U.S.

There are two main categories of U.S. visasimmigrant and nonimmigrant.

  • Immigrant – For travel to the U.S. on a temporary basis.
  • Nonimmigrant – For travel to live permanently in the U.S.
Visiting the U.S. before obtaining a work visa

There are two main methods that most startup founders use to visit the U.S. in order to explore the idea of expanding or relocating to the U.S.
  • B-1 Visa
  • Visa Waiver Program (VWP)
There are very strict guidelines on what type of activities can be done while visiting the U.S. with one of these methods. The rules for the type of activities are very nuanced and you should familiarize yourself with the guidelines prior to entering the U.S. You can find guidelines here. For a more legal understanding of the B visa, the U.S. Department of State’s Foreign Affairs Manuel is also a good reference for review.

Some allowable activities on a B-1 visa are:

  • Merchants taking orders for goods manufactured abroad;
  • Negotiating contracts;
  • Consulting with clients or business associates;
  • Litigating; and/or
  • Undertaking independent research
Visas that founders use to operate in the in the U.S.

There are three main nonimmigrant visas that most startup founders use to work on their startups in the U.S.

  • O-1A – Visa for individuals with Extraordinary Ability or Achievement (click here for a list of O-1A criteria)
  • L-1A – Intracompany Transferee Executive or Manager (click here for the qualifying factors for an L1 visa)
  • E-2 – Treaty Investors (click here for a list of treaty countries)
In addition, there are two immigrant visas that can be used:
  • EB-1A – Extraordinary Ability (click here for an understanding of EB-1A requirements)
  • EB-1C – Multinational manage or executive (click here for an understanding of EB-1C requirements)
Before moving to the U.S.

1. Try before you buy
Plan a trip or two to the U.S. and explore the ecosystem. Meet with some investors, go to a few events, and try to learn a bit about the business culture. However, you are able to visit, make sure you don’t break any immigration rules that would bar you from coming back on a longer-term visa in the future. This would include never overstaying your allowed time in the U.S.

2. Get your business paperwork in order
Make sure the company’s incorporation documents and U.S. bank account are in order before the first personnel visa application is submitted. In addition to the above, USCIS typically requires other evidence such as:
  • bank statements;
  • lease agreements;
  • 5-year P & L statements;
  • Invoices from current clients;
  • Letters of intent;
3. Make a plan and mark your calendar
Many U.S. visas will take at least 3-6 months from beginning to end, most will take even more time. Planning ahead and having contingency plans for delays will save your company time, money, and stress. You can check current visa processing times here.
For local consulate visa appointment, wait time click here.
Elizabeth Jamae works with foreign and domestic start ups and established companies to pursue setting up offices in the U.S. and securing US work visas for their tech talent. She also helps clients obtain permanent residence through labor certification (PERM), extraordinary ability, multinational manager/executive, as well as the related consular processing, and adjustment of status.