Here is another edition of “Dear Sophie”, the advice column that answers questions related to immigration on working in technology companies.
“Your questions are vital for disseminating the knowledge that enables people around the world to cross borders and pursue their dreams,” said Sophie Alcorn, immigration lawyer in Silicon Valley. “Whether you’re in people operations, a founder, or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”
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I am the founder of a startup with an E-2 visa. I am in the process of raising funds which will eventually reduce my stake in the business and prevent me from meeting the E-2 requirements. What can I consider next that would also allow my spouse to continue working?
– Founder of Fintech
Excellent question! As you know, the E-2 visa for conventional investors, essential employees and spouses requires that at least half of the US business be owned by people or companies from your country of citizenship. (There are more requirements, but these are the basics!).
I recently shared updates on some immigration changes on my podcast that affect some of the options that may be open to you, such as the International Entrepreneur Word Program and Green Cards. For additional options that meet your goals and any timing issues you have, I recommend consulting an immigration lawyer.
Alternatives to visas
Most founders would initially consider applying for an O-1A for Extraordinary Ability or an H-1B for Specialized Professions, but generally O-3 and H-4 dependent spouses are not immediately eligible for work authorization.
Many startup founders, especially those who have secured funding from investors, qualify for the O-1A, which is one of the fastest work visas to obtain and has some of the most demanding requirements. strict. However, spouses are not eligible to apply for a work permit solely on the basis of O-3 status.
Alternatively, if your equity dilutes, you might actually be in a better position for an H-1B. This option can be made more predictable with an alternative to the H-1B Random Lottery in the Spring if you are looking for a cap-exempt H-1B with a nonprofit or other qualified organization and potential concurrent employment. How it works? Having an H-1B cap-free means you don’t have to go through the H-1B lottery process. Then your startup could simultaneously sponsor you for an H-1B, also bypassing the lottery process. However, your spouse would not be eligible to apply for an H-4 work permit until you reach certain stages of the green card process.
If you are currently in the United States with E-2 status, you may consider requesting a change of status with USCIS. Premium treatment is available for O-1A and H-1B petitions. With premium processing, US Citizenship and Immigration Services (USCIS) guarantees that it will expedite its decision within 15 business days. A decision means either an approval, a request for additional evidence or a denial. Applying for a change of status is not the same as applying through a consulate abroad for a single or multiple entry visa in your passport.
International Entrepreneur Word
If you’ve created your business in the past 18 months, raised at least $ 264,147 in funding from one or more U.S. investors (or $ 105,659 in government awards or grants) and maintain at least 10% equity in your startup, then you may be eligible for International Entrepreneur Parole (PEI). The IEP allows you and your family to stay in the United States for up to 30 months – and your spouse is eligible for a work permit.
I’m celebrating a victory – I recently helped advocate for the IEP to be better for the founders, and as a result, one of the biggest challenges in the IEP program was recently removed. Although the IEP allows an initial stay in the United States of up to 30 months, U.S. Customs and Border Patrol (CBP) officers, who have final say in granting the IEP to you and your family and for how long when you physically enter the country, only allowed entry in 12 month increments.
This put a burden on families, as it meant you and your family had to leave and re-enter the United States in 12 months. It also meant that an IEP spouse’s work permit was only valid for a few months given the backlog in processing applications and the fact that the work permit is only valid as long as the IEP stay is valid. .
I am happy to report that this situation has changed for the better! I am part of a group providing input to the government on how to make the IEP program more efficient and effective. We recently received confirmation that CBP now has the ability to approve an initial stay in the United States for the full 30 months (not just 12 months at a time).
For more details on how to get the IEP, take a look at this previous Dear Sophie column on this topic, or for the background you can listen to my podcast episodes on “The Parole Entry Process” .
Green card options
With the possible exception of the green card by marriage, green cards take much longer to obtain than a work visa. Most employment-based green cards, such as the EB-1A green card for people with extraordinary abilities and the EB-2 NIW (National Interest Waiver) green card for people with exceptional abilities, take a few years. or potentially more if you were born in India or China and you do not have a priority date yet.
If you were born in China or India, you may wait several years for a green card number to become available in the EB-2 NIW category. Processing EB-1A is the faster of the two, especially since this category is common for all countries according to the November Visa Bulletin.
The Diversity Immigrant Visa (DV Program) offers another green card option, but it can take up to two years to get a green card if you are selected for the DV program’s annual lottery. The registration period for the Fiscal Year 2023 lottery is currently open until November 9, 2021 at 12:00 p.m. EST.
Each year, the US State Department, which oversees the DV program, reserves 50,000 green cards for people born in countries with low immigration rates to the United States. The State Department issues instructions each year, which include countries whose natives are eligible to enter the annual diversity lottery. Here is the latest version.
Be aware that as of October 1, 2021, all green card applicants must be fully vaccinated against COVID-19 before their immigration medical examination.
One of the benefits of pursuing a green card is your spouse’s work permit. If you are currently in the United States and are able to file an I-485 adjustment of status application, you and your spouse can also each apply for a work permit, which would allow your spouse to work. for an employer or to be self-employed in the United States Many founders on E-2, for example in Europe, choose to apply themselves for an EB-2 NIW green card and simultaneously file adjustment of status claims for any family.
I wish you the best on the path you choose to take!
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on “Dear Sophie” limits, please see our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you want to be invited, she accepts applications!