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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Dear Sophie,
I co-founded a startup last year, and my co-founder and I were just accepted to an accelerator program in the United States!
What type of visa can we get to come to the U.S. that allows us to stay there so we can grow our startup after the accelerator ends?
— Jazzed in Johannesburg
Dear Jazzed,
Congrats on being accepted into a U.S. accelerator! That’s wonderful news — and a great accomplishment that will not only bolster your startup but will also help your immigration journey.
I recommend you work with an immigration attorney who can guide you and your co-founder on your respective path to living and working in the United States and prepare you for the interview process at the U.S. consulate in Johannesburg.
If an interview is required, the wait time for scheduling an interview for a nonimmigrant visa at the U.S. consulate in Johannesburg is usually about 30 days, according to the U.S. Department of State Visa Appointment Wait Times page.
People seeking entry to the United States through visas requiring nonimmigrant intent must demonstrate to visa officials that their stay in the U.S. is only temporary, and they intend to eventually return to live in their home country. If a consular officer believes an individual intends to remain permanently in the United States, that officer will likely deny the visa application.
Now, let me dive into the visa options for coming to the United States.
B-1 business visitor visa
You and your co-founder can get a B-1 business visitor visa to participate in the accelerator program, which will enable you to stay initially for six months. To apply for a B-1 visa, you must fill out Form DS-160, the State Department’s online nonimmigrant visa application. Once you complete that form, you will need to print the confirmation page and bring it with you to your interview at the U.S. consulate. If your application is approved during the interview, it can take a couple of weeks for the visa to be processed and delivered.
Even though the B-1 business visitor visa and the B-2 tourist visitor visa are typically issued together as a single visa, make sure to specifically request B-1 business visitor visa status and tell the U.S. Customs and Border Protection (CBP) officer when you arrive in the U.S. that you will be participating in an accelerator program and conducting business during your stay here. That’s really important!
Always be aware that all of your future visits or stays in the U.S. can be affected by your reasons for coming to the U.S., the visa you use, what you say to immigration officials at your visa interview and when you arrive in the U.S., what you do while you’re in the U.S., and when you leave.
Under a B-1 visa, you cannot perform work, but you are allowed to undertake certain business activities, such as education and business meetings, which can include participating in the accelerator program. Other activities that are typically allowed are meeting with prospective investors, lawyers, or talent, negotiating contracts, attending workshops or professional conferences, conducting research, networking, and registering your company in the United States.
Consult your immigration attorney if you have a question about whether a certain activity is allowed on a visitor visa. Working while on a business visitor visa violates one’s status and would jeopardize your future ability to live and work in the United States or even enter the U.S.
The B-1 business visitor visa can be extended for another six months, but if you want to remain in the United States to work and grow your startup, you would need to get a work visa.
O-1A extraordinary ability visa
By being accepted and participating in a U.S. accelerator program, you and your co-founder are already on your way to meeting some of the criteria for the O-1A extraordinary ability visa. For this work visa, you must meet at least three of eight criteria. Two of the criteria—winning a nationally or internationally recognized award for excellence in your field and selection for membership in an organization that requires outstanding achievements—may already be fulfilled by your acceptance into the accelerator program!
Take a look at this previous Ask Sophie column as well as this one where I discuss in more detail how to build up the accomplishments that will qualify you for an O-1A visa.
In addition to building up your achievements, you will likely need to establish your company in the U.S. so it is qualified to sponsor you for the O-1A, or find an agent to sponsor you. This is where your immigration attorney and a corporate attorney can help.
Typically founders would then pursue EB-1A or EB-2 NIW green cards.
L-1A visa for intracompany transferees
The L-1A visa for an intracompany transferee manager or executive is a great option for founders like you who already have a startup outside of the U.S. and want to come to the U.S. to open an office. However, it requires your startup to have enough capital to support your and your co-founder’s salaries, lease physical office space, and have typically at least about $100,000 in a U.S. bank account. You will also need to submit a business plan, growth models, and an organizational chart. And, you’ll need to show that you already worked for the company abroad for at least one year out of the last three years.
If you can take this path, your company will need to file Form I-129, a nonimmigrant visa petition, on your behalf to U.S. Citizenship and Immigration Services (USCIS). According to the USCIS processing times page, USCIS can take anywhere from five weeks to two months depending on the service center, so I recommend filing with premium processing, which guarantees USCIS will either make a decision on your petition or issue a Request for Evidence within 15 days.
If you’re setting up a “new office” in the U.S. and are approved for an L-1A, it will be valid initially for only one year. To extend the L-1A for three years, you will need to show your U.S. business has met your growth models and is viable. The L-1A allows for a maximum stay in the U.S. of seven years.
The L-1A also offers a direct path to an EB-1C green card for a multinational executive or manager.
All my best to you and your co-founder on establishing and growing your startup in the United States!
— Sophie
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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, 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!