Dear Sophie: Is it possible to expand our startup in the US?

Here’s another edition of “Dear 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,

My co-founders and I launched a software startup in Iran a few years ago, and I’m happy to say it’s now thriving. We’d like to expand our company in California.

Now that President Joe Biden has eliminated the Muslim ban, is it possible to do that? Is the pandemic still standing in the way? Do you have any suggestions?

— Talented in Tehran

Dear Talented,

Yes, it’s possible! Unfortunately, yes, the COVID-19 pandemic is still making the immigration process a bit challenging, but remember, where there’s a will, there’s most often, in immigration law, a way.

On his first day in office in January, Biden rescinded the ban on visas for many majority-Muslim countries, including Iran. The ban had been in place since 2017 and nearly 42,000 visa applications were denied, according to the U.S. Department of State.

Biden also allowed the bans on the issuance of H-1B, L-1, and J-1 visas and green cards at U.S. embassies and consulates that the previous administration put in place last year to lapse.

That means international startup founders like you and other international talent living outside the United States can start thinking about obtaining these visas and green cards without necessarily requiring exceptions to do so. In a recent podcast episode, I talked about these and other immigration-related changes, as well as those promised by the Biden administration. Take a listen to find out more!

As you probably know, most travelers from Iran are currently not allowed entry into the U.S. because of the COVID-19 travel ban, and most U.S. embassies and consulates are not open for routine visa and green card application processing. Because the United States has not had an embassy or consulate in Iran since the Iran hostage crisis of 1979, you and your co-founders should find out which U.S. embassies or consulates are currently processing routine visa and green card applications — and are in countries that are not on the suspended entry list — and apply there. We’re still waiting for detailed information from the State Department on the equivalent of reparations for individuals who were affected by the Muslim ban.

In addition, I recommend that you consult with an experienced immigration attorney who can help you devise an immigration strategy for yourself, your co-founders and your families based on your personal and professional goals. Now, here are a few options for you to consider.

L-1A visa to open a U.S. office for your startup

Assuming that you’ve worked for your startup for at least one year, your startup could sponsor you for an L-1A visa for intracompany executives. An L-1A will allow you to establish a new office for your company in the U.S. as long as your company can demonstrate that the new office will support you and your family within one year of the L-1A being approved. An L-1A for setting up a new office is good initially for one year and can be renewed after the initial period for up to seven years total. Under an L-1A visa, you can bring your spouse and children with you to the U.S. — and your spouse can get a work permit, although there are currently long processing delays for work permits.

If you want to remain in the U.S. longer, the L-1A visa offers a path to the EB-1C green card for multinational managers and executives. The EB-1C green card would also require your U.S. startup to sponsor you. And your U.S. startup must be in business in the U.S. for at least one year before it can sponsor an employee for an EB-1C petition.

It’s generally a good idea to start a green card soon after arrival on L-1A as it can take a few years to obtain. If the executive or manager does not receive the green card before the seventh year of the L-1A, the visa holder must either file for an extension or leave the U.S. and wait for a green card in their home country.

B-1 visitor visa to explore the market then change to another work visa

If you want to explore the U.S. market before diving in, consider applying for a B-1 visitor visa for business. Under a B-1, you can visit the United States to attend meetings or conferences to explore the market and locations, meet prospective investors, negotiate contracts and incorporate your startup in the U.S. However, you cannot be employed or paid for your work in the U.S. A B-1 stay is initially valid for six months and can be renewed once for another six months.

If you apply for and are approved for an L-1A or another work visa before your B-1 expires, you would not have to leave the United States. Take a look at one of my previous TechCrunch columns, which provides an overview of other immigration options for founders.

Pursue International Entrepreneur Parole

Another way that you and up to two of your co-founders could come to the U.S. is to apply for International Entrepreneur Parole (IEP) if you can demonstrate that your startup will foster innovation, job creation and economic growth in the U.S. by receiving funding from American investors. After years of uncertainty about the program’s fate under the previous administration, U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2021, that it will maintain the program, which offers the closest option to a startup visa in the United States.

IEP would allow you and your family to enter the United States temporarily for up to 30 months initially. This option would require you to:

• Have set up your startup as a U.S. company within the last five years.
• Hold at least a 10% ownership interest in your startup.
• Be central to the startup and actively operate it.
• Show your startup has received at least $250,000 from qualified U.S. investors or at least $100,000 in government awards or grants.
• If the monetary requirement cannot be fully met, you must show growth and job creation potential through other means.

Hopefully, another option we’ll see soon is a true startup visa. At the request of the National Venture Capital Association, I recently helped draft legislation creating a startup visa that could soon be introduced in the House of Representatives.

Stay tuned!

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view 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’d like to be a guest, she’s accepting applications!