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The United States is the number one country for startups for many reasons, including Silicon Valley, access to venture capital, and the top talents in the world. All these make the creation of groundbreaking products possible.
However, if you are not a US citizen or resident, and are now working in your home country, it may be tricky to come to America with your startup. Sure, there are multiple relocation options, but the problem is that most of them are suitable for employees, investors, but not founders.
Happily, you can still find some legal ways to pursue your American dream.
1. H-1B visa
H1-B is a working visa used by international professionals to come and work in the US. Tech giants like Facebook and Google are actively relocating people using this type of visa. In theory, it is possible to do so for a not so big startup as well.
You can try to obtain such a visa as a startup founder. However, there are several essential things to know. First of all, you will have to prove the "employee-employer" relationship between you and your company. In reality, this means that your company should have the ability to fire you.
So, your equity as a founder should not exceed 50%. The company should have, say, a board, that can take important decisions like hiring and firing employees.
H1-B visas are subject to quotas. There is a limited number of such permits issued each year. For example, in 2019 fiscal year such a quota was set to 65 thousand while the USCIS received 199 thousand of visa applications. The decision on who will get the visa is taken during a particular lottery.
You can escalate your chances by studying in the US, as there is a so-called Master's Exemption Cap – an additional 20 thousand visas are issued to those, who've studied in American universities.
There is a workaround, which you can find online. The H1-B can be used not only by for-profit companies, but by non-profits like universities as well, and these visas are excluded from quotas (H1-B Cap Exempt). So, technically, you can land a job offer from such an organization, and come to the US without a lottery.
When you are in the US, you will work for your university, read lections, participate in seminars, and you can tailor these activities to your startup development as well. Here is the story of a founder who've used this scheme. However, we strongly recommend consulting with an experienced immigration lawyer before moving this road, as there might be some legal bottlenecks.
2. O-1 visa for individuals with extraordinary abilities
The O-1 visa is for foreigners who have significant accomplishments and talents in different fields and would like to come to the US to pursue projects in these areas. You as business owner is entitled to an O-1A visa, while scientists and researcher can obtain an O-1B visa.
The overall process here is similar to what we've described above for H1-B. You will need a formed legal entity in the US. Usually, it is a C-Corp. You also can't control more than 50% of the equity in this corporation, so that the company could fire you as an employee.
Besides the legal paperwork, you need to prepare a visa petition containing proofs of your "extraordinary abilities" and accomplishments. There are multiple eligibility criteria for an O-1:
professional prizes and awards;
membership of professional associations and communities which employ a screening process for potential members
(organizations which accept anyone for a fee do not suffice);
participation and success in professional competitions;
participating in such competitions as a member of a jury or judging committee (meaning you have enough authority to
evaluate other people's work);
mentions in reputable media outlets (your projects, interviews with you) and own pieces published in professional resources
or scientific journals;
public speaking appearances at professional conferences and events;
a high salary above the average wage people in your position would usually receive;
any other evidence that is useful for analysis.
You need to meet at least several criteria to get the visa.
There are no up-to-date statistics about the volume of issued O-1 visas. However, we've managed to find publicly available numbers for 2010 fiscal years. In that period the USCIS received 10,394 visa petitions, approved 8,589, and declined 1,805 of them.
What else you should know
There are no signs of a significant increase or decrease in O-1 visa applications in recent years. However, when planning your application, you should understand that USCIS approval percentage is not the final figure you should be aware of.
Getting an O-1 visa is a two-step process. First, you need your petition approved by the USCIS, and after this, you will visit the US embassy or consulate in your country or neighboring regions to stamp the visa to your passport. Even having an approved petition does not guarantee you will finally get a visa, as the officer may decide that you do not qualify for some reason. We know at least several cases of visa denial in the consulate after USCIS approved the O-1 petition.
So, you should be very well-prepared to your visa interview. Be ready to answer the trickiest questions about your business, duties, and even personal life. You can self-assess your chances for getting an O-1 using the checklist in our O-1 visa whitepaper.
3. L-1 visa for intracompany transfers from offices abroad
You may use this visa if you have a legally formed business in your home country on somewhere else outside of the US. In theory, you can open a branch in America and relocate to develop it.
There are some bottlenecks, as well. The USCIS will require you to explain why your company has to be in the US.
Facts and stats
The US office needs to be up and running before you come to the country. Immigration officers will review your paperwork, including a detailed business plan, proof of office rent, etc. Also, you as an employee, should be working in the parent company abroad for not less than one year.
According to the USCIS statistics, after 2000 every year, more than 100 thousand of L-1 visas are issued.
Today we've reviewed three different types of visas suitable for startup founders, who do not want to work for somebody else and do not have enough resources to be an investor.
Last valuable advice: before actively work on your relocation, spend some time to research, find a skilled immigration lawyer. The best thing you can do is to work with an attorney who helped in relocation someone you know and trust.