Opportunities and Obstacles in America’s Visa Options

BY SUSAN LAHEY
Reporter with Silicon Hills News

H1_B_Work_Visa_Application_Large_ImageLast year, Congress introduced the Startup Visa Act to provide visas to foreign entrepreneurs who have U.S. backing and whose businesses are expected to provide certain levels of employment, revenue, or capital investment. If the legislation ever passes, it may make things a lot easier, said Sweta Khandelwal, an immigrant and Silicon Valley immigration attorney who spoke Monday at Capital Factory.

Currently, choosing the best visa options requires chess-like strategy and a lot of creativity. Some visas are tied to education and job type and others to money. Visas last various amounts of time. Some allow spouses to work and others don’t. Some lead to green cards and others are only for people who have “no immigrant intent.” Khandelwal says she’s been on all of them and there is never a cookie cutter solution. And, like so many other aspects of entrepreneurship, most require “a good story.”

Sweta Khandelwal, an immigrant and Silicon Valley immigration attorney, photo by Susan Lahey

Sweta Khandelwal, an immigrant and Silicon Valley immigration attorney, photo by Susan Lahey

“Twenty five percent of the high tech companies started in the U.S. between 1995 and 2005 had at least one immigrant cofounder,” said Khandelwal, who is chair of the Silicon Valley chapter of the American Immigration Lawyers Association. “That person must be on the right visa to ensure continuity of the company. You also need to be able to hire top global talent.”

“There are no standardized regulations, you have to get creative,” she said. “No business is replicative or duplicative of another…. You have to customize your visa application and really plan ahead.”

Visas for Students and Recent Grads

A really popular visa option is the student visa, F-1 and the Optional Practice Training as well as Curricular Practical Training. With the F-1, a student can stay in the country as long as he is in school and may remain an additional 12 months in the country on an OPT visa to get further training in the area of his education. This can be extended an additional 17 months for STEM graduates who work for verified companies. CPT allows students to do work that is integral to their field of study. They can use up to 11 months of CPT without losing the opportunity for OPT.

If a graduate wants to start a company, he can get that companies e-verified and become an employee. This period gives them time to get their companies up and running and prepare to apply for a different kind of visa.

Investor Visas

The E-2 visa is for immigrants from any of 50 or so countries that have a specific treaty with the U.S. which includes Mexico but excludes India and China. This allows a foreign national to invest in a U.S. business and live in the U.S. to direct and develop the business. Generally if more than one foreign national is involved, they have to be from the same country. The investment amount does not have to be substantial, Khandelwal said. It just has to be sufficient to support the business. Around $15,000 may be adequate. But it can’t be in the form of a loan secured by the business and the investment money must be demonstrated to go into the business for items such as purchasing equipment, leasing space and so forth. Travel to and from the U.S. to establish the business, hotel bills and the like all count as investment. But the investor has to be seeking to build a business that will create economic benefit beyond a lifestyle business. The spouse of an E2 can work. You can be on the E visa indefinitely, but if you hope to get a green card, you have to get a different visa first. This is one of the visas with “no immigrant intent.”

Employee Visas

L-1 or Intercompany Transfer visas let executives, managers or people with specialized knowledge who have worked for a company during at least one of the preceding three years, to work at a U.S. company with which the foreign company has an affiliation. This might be a subsidiary relationship or a branch office. Or they might share a group of shareholders. There are several different forms the affiliation can take but the foreign business must continue to operate. You can’t just move your company to the U.S. on the L-1. One of the great things about an L1 is there’s no minimum salary they must pay the employee and no fixed number of visas, unlike the popular H-1B. L1s don’t’ require a minimum investment. The L1 is initially approved for one year but once you get the office or subsidiary established you can get it for three years. L1s can lead to green cards, Khandelwal said. But the standards for green cards are much more stringent. So while a person who receives an L1 visa can apply the next day for a green card, it’s wiser to wait and establish the business.

The H-1B Visas

One of the most popular visas is the H-1B. These are subject to quotas and they’re issued by lottery within days after the April 1 deadline. H-1Bs go to people with specialty occupations. But this is one of those places that require creativity, Khandelwal said. For example, a CEO, for the purpose of the visa, is generally not considered a specialty occupation. So she recommends people not call themselves CEOs. Instead they might be “Business Development Directors.” The business must pay for a person to come on an H-1B visa which generally costs around $1,500 for the application. The business must also pay the going rate for that employee. If other people in that region of the country, in that position, are earning $85,000, that’s what the immigrant employee must earn. H-1Bs last six years as long as the person remains employed. But with the H-1B, unlike the L-1, employees can switch employers and remain on the visa. Some countries, like Mexico, Canada and Australia, have separate visas not subject to the H-1B quotas.

Extraordinary Ability Visas

Another type of popular visa is the O-1A, or extraordinary ability visa. For this you must demonstrate that you are one of a very few at the top of your field, whether that’s the sciences, arts, education, business or athletics. How you prove that extraordinary ability is pretty much open to interpretation, Khandelwal said. It might be that you were accepted into an exclusive incubator, or won a hackathon or some other award. The standards are high but the ability to spin your circumstances counts for a lot.

These are the visas most likely to be useful for entrepreneurs, Khandelwal said. The problem is, for many companies who are trying to figure out all the domestic issues of starting a business—from investment to intellectual property laws to HR regulations, tackling immigration issues in order to bring on even an exceptional founder or employee can look overwhelming.

Peter French, founder of San Antonio’s FreeFlow Research which creates opportunities for foreign STEM students to stay in the U.S. through education, work and research, acknowledged that the challenge to find and secure the right visas could be daunting, especially to small businesses who hire 95 percent of employees.

“It is really that issue that pushed me to look at this field in the first place,” said French, whose nonprofit organization operates out of Geekdom. “We have these huge gaps in talent. The number of U.S. born students with STEM degrees is tiny, and shrinking. So, in some fields you have 80 percent of the graduate level degrees in computer science and other really high demand fields go to non-U.S. citizens and…they’re being turned away. What you heard tonight is the general story that’s told: That hiring foreign born folks is just too much trouble…. Only large companies endeavor to hire international folks and this starts at the internship level. If you read the fine print on internship application you see “Must be U.S. citizen to apply.”

Small businesses need to understand, French said, that with F-1 programs, OPT and CPT, students can string together as much as 42 months of time working in the U.S. before an employer has to sponsor a visa for them.

“Foreign born folks are twice as likely as native born Americans citizens to start companies. But then they have all these impediments to staying,” French said. “So they’ve won startup contests and they’ve received venture capital but they’ve done it all on their student visa, so then what? They hit this wall and they have to pack up their employees, profits and intellectual property and go home? It’s the antithesis of the American dream.”

Comments

  1. This article seems to be written from the perspective of an immigration attorney desiring to build up their business. The article neglects to mention the unprecedented STEM talent gluts that existed in the U.S., even prior to the creation of the controversial H-1B Visa program in 1990. The article neglects to mention recent statistics from the U.S. Census Bureau that establish that despite the characterization of STEM degrees as being a tiny number of U.S. degrees, the reality is that STEM and STEM Related degrees were almost half of the degrees granted in the U.S. for Bachelor’s degree and higher as of 2009. 19,640,000 science and engineering degrees is a huge number. Add another 4,936,000 for Science and Engineering Related Fields. That is almost half of the 56,336,000 total!

    • Dr. Truthful says:

      The STEM shortage propoganda was effecitvely created by the rich tech owners with active connivance of the politicians. The reason to keep wage growth down, and it has done it’s job! The middle class STEM worker has suffered and there has been rampant age discrimination in this sector. Lots of older STEM workers no longer work in the area at all! The universities also have to blame because they have a vested interest in the propaganda. This is what we get when lawyers and rich CEOs lobby endlessly without concern for the avergae person – bad public policy!

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