Here is another version “Dear Sophie,” an advice column that answers immigration-related questions about working at tech companies.
“Your questions are critical to spreading the knowledge that allows people around the world to rise above borders and pursue their dreams,” said Silicon Valley immigration attorney Sophie Alcorn. Whether you’re in People Ops, a founder, or looking for a job in Silicon Valley, I’d love to answer your questions in the next column.
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I am resolved: this is the year I finally live my dream and create my startup! I currently have an H-1B for a full-time engineering role at another company.
How can I transfer my visa to my starter? How do we structure startups for immigrant success?
– Restless and loose
Dear restless and loose,
Congratulations on embarking on this exciting new adventure and taking the first step towards living your dreams!
H-1B transfer is difficult, but possible!
Short answer to your first question: Yes, you can transfer your H-1B visa to your new start. However, it’s a difficult process, and it’s important to establish the right, compliant foundation before proceeding.
This setup process can take time (several months), but the peace of mind you get knowing everything is correct will be priceless. You should contact both a corporate attorney and an immigration attorney. A corporate attorney can help you set up your company, including drafting bylaws, and an immigration attorney can help you decide the best strategy for you and any co-founders based on your personal and business goals.
As a co-founder, you need to take steps to qualify for your company to apply for an H-1B transfer in order to get funding for your startup.
Setting up your startup
In order to transfer your H-1B to your startup, you may have to give up control of your startup, (sometimes but not always) give up a significant stake in it, and make sure it is set up to meet all immigrant visa requirements.
To meet the sponsorship criteria, you must demonstrate to the US Citizenship and Immigration Services (USCIS):
- Your startup and you have an employer-employee relationship. This usually means that you should not own more than 50% of your company and that someone else should have the ability to regularly hire you, supervise you and your work, and fire you.
- Your startup has the ability to pay current wages based on your location and geographic location, as well as the duration of the visa application (usually up to three years for H-1B transfers).
Start planning now and define your role in your startup, how many co-founders you will have, how much equity everyone will receive, the role of your co-founders and future investors. This will allow your attorney to see if your plan is feasible and offer any options.