Dear Sophie: Is there an easier route to L-1As and STEM O-1As?

​​Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie,

I live in India and run a startup here, but most of my clients are based in the United States. I also have a Delaware C Corp we established before the pandemic. We have three full-time contractors doing business development and sales in the U.S., and I still have a valid B-1/B-2 visitor visa.

As my company continues to grow, I’m considering coming to the U.S. with my family and purchasing a home. What are my best options?

—Intrepid in India

Dear Intrepid,

Now is the perfect time for international startup founders like you to start moving to the United States! Most areas in the U.S. are ending pandemic-related restrictions, and the U.S. government is becoming more open to immigration for startup founders, particularly those in STEM fields. Some consulates are even waiving visa interviews through the end of this year. Furthermore, applying now will enable you to avoid likely USCIS fee increases. I covered these exciting updates and changes in a recent podcast episode.

As always, I recommend you consult with an experienced immigration attorney, who can advise you based on your and your family’s specific circumstances and goals. Do you have a co-founder? Will your spouse need to work for you to purchase a house in the U.S.? These are important conversations to have with your immigration attorney.

U.S. Citizenship and Immigration Services (USCIS) recently reported that their case backlog as of the end of 2021 surpassed 8 million, so it’s important to consider a pathway that permits Premium Processing for a fast adjudication of your underlying petition.

Because you have a B-1/B-2 visitor visa — assuming you have never been denied a U.S. visa — consular officers have the discretion to waive your in-person interview for an L-1A or O-1A visa at a U.S. embassy or consulate, which can help you save a lot of time given the immigration case backlogs.

L-1A visa

The L-1A visa for an intracompany transferee executive or manager is a great option for international entrepreneurs. What’s more, the L-1A offers a path to an EB-1C green card, and your spouse will be eligible to apply for a work permit as an L-1A dependent.

To qualify for the L-1A:

• You will need to have worked at your company in India for at least one year out of the past three years.
• It’s helpful to have cash in the company’s U.S. bank account, typically at least $100,000 to $200,000.
• Even though most folks prefer hybrid work, for an L it’s still valuable to have a physical office in the U.S.

How long is your initial L valid? If you’re coming to the U.S. to set up a new office, you can initially request one year. But, it sounds like maybe you’ll qualify as already having set up your U.S. presence, in which case you can initially seek up to three years. You can petition to extend the duration after the initial period, and the maximum stay in the U.S. on an L-1A visa is seven years.

To set up your office ahead of time, you can travel to the U.S. on your B-1 visa for business visitors. You can tour office space and sign a lease agreement, which under the B-1 is not designated as work. (Under the B-1 visa, you are not allowed to work!) You can also attend meetings with prospective clients or investors or explore the U.S. market.

Make sure to tell the Customs and Border Protection officer when you enter the U.S. that you are here on business. If you tell the officer you are in the U.S. for pleasure and get a B-2 and then secure office space during your trip, immigration officials might later accuse you of fraud — and that may jeopardize your ability to get any other visa or a green card.

Over the past several years, USCIS was heavily scrutinizing L-1A visa applications from international founders of small and early-stage companies, however, more small companies that are legitimate have recently been getting approved faster and with fewer Requests for Evidence. It’s helpful if your company in India already has 10 to 20 employees and your U.S. company has five to 10 employees, but if your company doesn’t quite fit that profile, there are still ways to get approved. Your attorney can advise you on how to demonstrate your company’s eligibility.

Very exciting O-1A visa updates

Why did the scarecrow get an O-1?

Because he was OUTSTANDING in his field!

I’m so excited about the Biden administration prioritizing the attraction and retention of STEM talent in the United States. Some of those changes have made it much easier for international entrepreneurs, scientists and researchers to qualify for an O-1A visa for extraordinary ability, which is one of the quickest and most predictable immigration options for those who qualify.

One super exciting update is that a Ph.D. dissertation in a STEM field or a grant for doctoral work can now count as an “award” for the three out of eight O-1A eligibility criteria. Generally, the standard for qualifying for an O-1A was that the beneficiary must have won a nationally or internationally acclaimed award in their field of expertise. We used to have to tell people that student awards didn’t count. This update is a big deal!

More cool changes discussed in the podcast:

• Pending patents now meet the bar for demonstrating an O-1A candidate’s original contributions to the field.
• USCIS will explicitly consider equity, SAFE notes and convertible notes as alternative evidence to wages for demonstrating “high remuneration” in one’s field.

All of that said, there are a few things to keep in mind about the O-1A. The spouse of an O-1A visa holder is ineligible for a work permit, and you’ll still need an agent or employer to sign the petition. Again, discussing your particular circumstances and considerations with an experienced immigration attorney will offer great clarity.

Best wishes on your journey to the United States!

—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. “Dear Sophie” is a federally registered trademark. 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!