Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

Igniters Meetup
Immigration Hacking:
Solving Immigration puzzle for foreign-born Entrepreneurs

Sweta Khandelwal

Sponsored by:

Hosted by:

www.vorkspace.com
- Workspace of the Future

Welcome!

Immigration Hacking: Solving Immigration
Puzzle for Foreign-born Entrepreneurs
Employment-based US Visas for founders, their
start-ups and their employees
February 21, 2014, Hacker Dojo, Mountain View
Sweta Khandelwal
Principal Attorney
Law Office of Sweta Khandelwal
3333 Bowers Avenue Suite 130 Santa Clara CA 95054
P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: sweta@khandelwalaw.com Web: www.khandelwalaw.com

Introductions!
• Immigrant myself!
• Entrepreneur too! Owner/Principal Attorney- Law
Office of Sweta Khandelwal• Chair, Silicon Valley Chapter, American
Immigration Lawyers Association (AILA)
• Advocacy & Media Co- Liaison, AILA-SCV

• Understanding of how US Immigration laws
intersect with entrepreneurship
• Overview of various work visas that can be used
by foreign entrepreneurs and their start-ups
• Appreciate how seemingly small changes in fact
patters can effect available visa options
P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Disclaimer

This presentation is not intended to
give legal advice.
It is for
informational purposes only.
It is
geared to help participants get a basic
understanding on how immigration law
and
practice
intersect
with
entrepreneurship.

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Agenda/ Roadmap
• Importance of Immigration
• Key non-immigrant work visas (NIV) or temporary visas
• Key immigrant work visas (IV) or permanent visas or Green Cards
• Case Study: Apply elements to potential scenarios

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Entrepreneurs, Start-ups & Immigration
Why is knowledge of US Visas critical to foreign entrepreneurs?
Description

Area
•

Why
Immigration

25% of high-tech companies founded between 19952005 had at least one immigrant founder
– Founders

on right visa to ensure continuity of the company
– Able to hire top global talent

• Get

creative

• Explore

USCIS &
Entrepreneurs

•

– Shift

in policy towards entrepreneurs
– Old Wine in a New Bottle-Old Laws, New Business
•

Approach

Potential
Problem

Creative & Customized – no one size fits all

options
• Be-proactive
• Stay

– Structure

business accordingly
– Plan really ahead
•

Lack of standardization in applying laws
– Laws

•

Notes:

Entrepreneurs in Residence Initiative

have “gray areas”

Best immigration decisions are usually not good for business

(1) TBD
(2) TBD
Source: Source 1; Source 2; Source 3

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all

informed

Agenda/ Roadmap
• Key Non-immigrant work visas
• Key Immigrant Work Visas

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Non Immigrant/Temporary Visa Options
Relatively easy, quick and economical!
Typical purpose/ applicability

Type of visa
1

2

Visitors
B-1& Visa
Waiver
Program

Students
F-1 & OPT

3 Investors &
their E’ees
E-2

Notes:

(1) TBD
(2) TBD

•
•
•
•

Useful in the preliminary stages
Limited purpose
No employment in the US
No remuneration

•
•
•

Practical training- up to 12 months; +17 (STEM)
Full time & Part-time; multiple jobs
Not
No minimum wage required
applicable
for India
and China
Available to Treaty Nationals (TN)
Investor or Managers or Critical Employee
At least 50% of business must be owned by TN
Business must be controlled by TN

•
•
•
•

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Non Immigrant/Temporary Visa Options
Relatively easy, quick and economical!
Type of visa
4

Inter-Co.
Transfer
L-1 Visa

•
•
•

5

6

Typical purpose/ applicability
Existing foreign business can set up “affiliated” US
business
E’ee employed by overseas business for at least 1 year
out of the preceding 3 years
Managers(L-1A) & Special. Knowledge workers (L-1B)

Professional
Worker
H-1B Visa

•
•
•

Used for “Specialized Occupation” workers
Foreign National must have a Bachelor’s Degree
Only NIV for US Companies!

Extra-ordinary
Ability
O-1 Visa

•

Available for people in the arts, sciences or business
who are at the “top of their fields”
Must meet at least 3 criterion prescribed in law

Notes:

(1) TBD
(2) TBD

•

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Visitor Visas: B-1 & Visa Waiver Program
(VWP)
Who is eligible

What it takes to succeed

Temporary visitor for
business
Both B-1 & VWP to be used
for limited purposes
• Negotiate contracts
• Attend meetings
conferences
• Independent
research
VWP
• 37 participating
countries
• Cannot change/
adjust status
• 90 Day Limit
• Can still apply for B-1





Must demonstrate non-immigrant intent
Cannot be employed in the US
No remuneration to be received

What sucks

What's great?
 Convenient, economical
 Quick process
 Great during
early/planning stages

 Law unclear as to what
activities are permitted
and what are not
 No appeal against
denial-must reapply

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Student Visa: F-1 & OPT
Who is eligible


 Those who are studying
full time (Grad. Undergrad.
Ph.D. in accredited
schools
 Generally, no employment
while student is in school
 Up to 12 months of
training/work permit after
completion of program
 17 additional months for
STEM graduates
 STEM only for E-Verified
Companies

 Completion of your academic program!
 Importance of accredited/reputed schools
 Cannot be out of job for more than 90 days during
OPT period
 STEM extension must be timely applied
What's great?

What sucks

 Great for start-upsincubator/accelerator
 No wage requirement
 Full time, part-time,
multiple jobs
 Cap-Gap solved (H-1B)

 Nothing-It’s a great
option!
 Limited duration-29
months max; must then
move to another visa
 Timing issues

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Visa for Investors & their Employees: E-2
Who is eligible


 Those from E-2 country listTreaty Nationals
 Treaty Nationals must own
at least 50% of the business
 Treaty Nationals must
control the enterprise
 FN can be Investor/
Exec./Manag./Special Know.
 IF FN is Investors - develop
& direct the business
 Generally, all nationals must
be from the same country
 If 2 nationalities involved,
both must have equal
ownership & control








Investment that is “at risk”-irrevocably committed
Business is substantial; more than marginal return
Great business plan required
Source of funds must be legitimate-gifts, salary, o.k
Money could have been earned in US or abroad
Loans-only those secured by personal assets
What’s Great?

What sucks

 No high threshold
investment$
 Can use intangible assets
if properly valued
 Spouse of E-2 can work

 Problem with VC fundingcontrol/ownership
 No set min. $ investmentunclear
 No immigrant intent-no
path towards GC

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Inter-Company Transfer: L-1 Visa
Who is eligible


 Foreign business can set
up an “affiliated” US
business
 Affiliate relationship
defined in law
 FN must be employed by
the overseas company
for at least 1 yr. in the
preceding 3 years
 Both owner/employee
may be eligible
 New Office vs.
Established Office

 Eligibility requirements critical
 Both Foreign and US Company must be in business
 Evidence of relationship between the two companies
to be extensively documented

What sucks

What's great?





Great for overseas co.
No min. salary reqd.
No fixed no. of visas
CEO can spend time in
US and home country
 GC for L-1A-EB-1
 Spouse can work

 L-1A for owners & small
business is tougher
 New Office L-1 req.
 Proving 1 year
employment when no
salary

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Specialty Occupation Visa: H-1B
TN Visa-Professionals Canadians
& Mexicans-no self employment

Who is eligible
 Visa for Professionals
 Position must be a
specialty occupation
 Foreign National must
have a Bachelor’s Degree
 Visa tied to the sponsor
company

 An organization structure that establishes an
employer/employee relationship b/w US business &
Foreign National (FN)
 Proof that there is enough work/specialty occupation
for the duration of the petition
 A great story!
What sucks

What's great?




Once FN is on H-1B,
can change between
employers with relative
ease
Part-time and full time

 Limited visas-Quota
 For founders, e’er/e’ee
relationship is hard
 Specialty occupation for
founders is a challenge
 Minimum salary-high
 Spouse cannot work

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Visa for Extra-Ordinary Ability: O-1 Visa
Who is eligible
 An individual who has
extra-ordinary ability in the
arts, sciences and
business


•
•
•
•
•
•

 Sustained
national/international
acclaim
 Distinction in the field

National/Internationally recognized award
Membership in assoc. in the field based on ability
Published material in trade journal or other media
Judging the work of others
Scholarly articles in the field; original contribution
Prestigious org., critical capacity, high salary
What’s great?

 Visa focus on person, as
opposed to company
 Must show that FN meets
at least 3 of the eligibility
criterion







No Quota
No restriction on salary
Renewed indefinitely
A path to GC-EB-1
Room for creative
lawyering!

What sucks



Burden of proof is high
Not everyone can
qualify

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Immigrant/Permanent Visa Options
Challenging, time consuming, and expensive!
Type of visa


1
EB-1

Eligibility requirements
Three categories; two relevant here
Extraordinary Ability Workers –O-1?



2



Multinational Executive & Managers-L-1?

EB-5

Notes:

(1) TBD
(2) TBD

Not really useful for entrepreneurs

Investor based GC



Investment must meet all established criterion



3





EB-2/EB-3

$500,000-$1,000,000

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Employment Based Immigrant Visa: EB-1
Who is Eligible


Available to three groups:
 Extraordinary Ability
(similar to O visa);

 Multinational
Exec./Man. (relevant
for those on L-1A
visas);
 Professors and
Researchers

 Extraordinary Ability-outstanding achievers
 Multinational Executives& Managers-L-1A-must show that
FN has managerial duties and supervises over
professionals

What sucks

What's great?


No Labor Cert.
required



Burden of Proof –highhigher than NIV

For Extr. Ability no
employer is required





Visa Bulletin is
current-India & China

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Employment Based Immigrant Visa: EB-52
 AnyWho is Eligibleto
investor willing
 invest at least $1 million of
their own funds; or
$500,000 if investment is
in a TEA
 Investment must be in a
New Commercial
Enterprise
 The business must employ
at least 10 US workers full
time

 Investor must be involved
in day to day management
of the company
 Conditional GC issued for
2 years







Demonstrate the source of funds-own and legit
Two years to show that all conditions have been met
A comprehensive business plan required
Loans o.k so long as secured by personal assets
Investment must be “at risk”
What's great?

What sucks

GC for investor & family
$500,000 Invest. can be
made in Regional Centers
while investor works on
his/her own business
 One of the easiest way’s
for a GC

 Model not suitable for
entrepreneurs
 Requires investment of
own money in business




P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Agenda/ Roadmap

• Key Non-immigrant work visas
• Key Immigrant Work Visas


P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Launching a cool mobile payments
business in France
Clemente –
French
Application
Developer Par
Excellence
•

Bachelors
Engineering- wants
to do an MBA in
the US

Moracio–
Italian
Brillianto
Hacker
•

No formal degree
in EngineeringWants to get one in
the US

Jean Paul–
French
Technologist
with business
mindset
•

Bachelors degree
in Engineering;
considering a
Master’s

Status of their start-up
 Working on an IPhone/Android app. that they claim
will revolutionize the way handheld devices are used
to make payments
 Bootstrap efforts /money to create a beta version
 Incorporate a business entity in France
P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Meet some people

Win hackathon

Successful Trip to the US

 Clemente and Moracio enter the US on the Visa
Waiver Program
 Participate and win $100000 in the grand
hackathon-Can they?
 Incorporate a company in the US- Should they?
“Keen on the
business- tell
me more”

Santiago
Mexicano:
Eng. graduate
looking for a job

Chong:
Chinese PhD
student
P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

“Have
contacts
with VC :
Can I
help”

Dr. Daring
Chong’s
advisor and
USC

Decisions to be made
Best for Business vs. Best for Immigration





Structure: Who will be CEO
Investment: How little/much can we invest ?
Funding: Can we get VCs to show interest ?
School: Can we go to Grad/ MBA school? Can
we work in the business while at school?
 Payouts: Salary ? Dividend? None?
 Business continuity: someone in France to
manage? Travel between US and France?

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Scenario 1: Trio do not invest own $ in
the business
This is what they do
Clemente –
French
Developer;
goes for MBA
Moracio–Italian
Brillianto Hacker
thinks school not
worth it!
Jean Paul–French
Technologist with
business mindset
comes to the US to
meet VCs and gets
Dr. Daring-USC on
BOD –VC

What are available visa options?
Clemente





No Change of Status from VWP to F-1
F-1; 12 months OPT; then
Choice: O-1 vs. H-1B
OPT then H-1B
• Cap/Gap
• Quota
What about

Moracio
the E-2?
 O-1-CEO?
Jean Paul

B-1 or VWP for now

H-1B
Santiago
 May work on TN
Problems with H-1B?
Remember-H-1B must be paid a certain salary

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Scenario 1: Trio do not invest own $ in
What about the E-2-now that we
have VC?
the business
But they do things
differently

Now, What are available visa options?

Clemente –
Application
Developer
drops plan for
school
Moracio–Italian
Brillianto Hacker
decides to opt for
formal education
Jean Paul–French
Technologist with
business mindset
manage the business
from France-gets
French VC

1. Moracio
 Can’t join co. unless finishes school
(Eng.)
 After school, 29 months OPT
2. Clemente
 Can be an E-2 employee as
long as 50% co. owned by French nationals
 Moracio can work on OPT & have a
minor stake in the company Problem with dual nationality if Moracio
wants to come in on E-2; H-1B better?
3. Jean Paul
 Can come on E-2
 L-1 after at least a year so long as
French entity is active and “affiliated”
with US co.
4. Santiago
 May work on TN

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Scenario 2: Trio do invest own $ in the
business
This is what they do
Clemente –
Application
Developer $

Moracio–Italian
Brillianto Hacker
$$

Jean Paul–French
Technologist with
business mindset
$

What are available visa options?
1. E-2 for all
So long as business in owned and controlled
equally by nationals of both Treaty countries

2.
H-1B for any
Will benefit if at least 1 USC on BOD; and H-1B
holder does not have majority stake
3.
O-1 for Clemente & Moracio
Possible. O-1 focused on individual more than
company
4.
Jean Paul
L-1 after a year; may shuttle b/w US & France
so long as majority work/time in US

In all scenarios Santiago may work on TN
P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

It’s not the end!
There is a ton of useful stuff still available-here’s where & how
•

To win a 45 minutes free consultation (valid
for the next 6 months), drop your business
card and participate in a raffle!

•

Visit my website at www.khandelwalaw.com.
It has relevant and practical insights,
informational video’s, FAQ’s, and more.

•

For specific questions about your case, email
me at sweta@khandelwalaw.com

•

Contact details are also available by scanning
the QR code below:

P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527

Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs