Ask Sophie: What visas could work to come to Silicon Valley for customer discovery?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

I’m a founder of a startup in Estonia. I listened to your podcast about the importance of international founders coming to the U.S. to meet collaborators and do customer discovery before expanding in the market. Should I come on a visitor visa? Any other visa options I should consider?

— Eager in Estonia

Dear Eager,

I’m happy to hear that you’re listening to my podcast from Estonia! Thanks for reaching out to me with your questions!

For those who haven’t heard it, the podcast episode you’re referring to features Jeff Wallace, co-founder of startup community and accelerator platform Silicon Valley in Your Pocket, and Ann Lee, who is exploring the challenges and benefits for international founders expanding in the United States, particularly in Silicon Valley. As you know, their advice is to thoroughly research, analyze, and understand the market before diving in. Kudos to you for deciding to take the plunge!

But before you do, I recommend you consult a U.S. immigration attorney to devise a strategy for you based on your short-term and long-term goals. Also, discuss with your attorney when to file for a work visa, such as the H-1B, L-1A, O-1A or E-2, which I discuss below in more detail. U.S. Citizenship and Immigration Services (USCIS) is expected to finalize significant increases for most petition and application fees in the next few months.

For example, the current filing fee for E, H, L, and O visa petitions is $460. The USCIS proposal called for increasing the filing fee for E visa petitions to $1,015, H visa petitions to $780, L-1 visa petitions to $1,385, and O visa petitions to $1,055.

The USCIS may have changed these proposed fee increases, which were released about a year ago, based on the nearly 8,000 public comments it received. Regardless, the final rule on fee increases will likely take effect at least 60 days after it is published in the Federal Register, which could be soon.

Now, let’s dive into your immigration options for coming to the United States.

Visitor visa or ESTA status

You definitely should consider either a B-1 visitor visa for business, which will enable you to enter the U.S. and stay for up to six months, or an ESTA (Electronic System for Travel Authorization) WB (waiver-business) status, which enables citizens from Estonia and 40 other countries to stay in the U.S. for 90 days or less for business (or tourism) without obtaining a visa.

However, you cannot engage in any unauthorized “work” while in the U.S. while on a B-1 visa or ESTA WB — or at least the immigration legal definition of “work.” What sorts of activities are typically allowed?

You can set up your startup’s U.S. entity, attend meetings with prospective customers or investors, conduct market research, negotiate and sign contracts, or find an office location — which is a lot! Check with your immigration attorney for what you can do while on a B-1 or ESTA WB.

Keep in mind that the B-1 visa and the B-2 visitor visa for pleasure are most often issued together as a single visa — and ESTA is available for business (waiver business) or for pleasure (WP or waiver pleasure). When you arrive in the U.S., make sure that the U.S. Customs and Border Protection (CBP) officer knows you intend to participate in business activities during your stay on either the B-1 or ESTA WB.

This is super important! If the CBP officer fails to note that you will be conducting business activities while in the U.S. and lists your stay as a pleasure trip, you could jeopardize your ability to enter the U.S. Any future work visa or green card applications as different activities are permitted when you are a tourist or a business visitor.

If you have a choice, the B-1 visa offers more flexibility than ESTA WB: You can extend the B-1 visa once for an additional six months, and you can change your status from a B-1 to another work visa while already inside in the U.S. In contrast, you cannot (except for maybe at the beginning of the global pandemic) extend ESTA WB beyond 90 days, and you cannot change to another nonimmigrant status while in the U.S.

If you come to the U.S. on a B-1 business visitor visa to explore the market here and decide to move forward with expanding your business in the U.S., you can then apply to change to one of the visa categories below and later apply for a visa the next time you need to travel internationally. A petitioner, such as your company, will be required to sponsor you for any of these visas.

L-1A intracompany transferee visa

The L-1A visa for intracompany transferee managers and executives provides a great option for international founders who have been working at their startup abroad for at least one year in the past three years to come to the U.S. to open an office.

You will need to show that you have secured office space in the U.S. and that the U.S. office will support your position within one year of approval of the L-1A visa. You need to have a physical office — even a dedicated room in a co-working space — which indicates that your company is serious and viable.

The L-1A visa application requires various evidence such as business plans, growth models, and organization charts. If you’re setting up a new office in the U.S. and are approved for an L-1A, that visa will be valid initially for one year only. After that, to extend the L-1A, you will need to show your U.S. business has met your growth models and continues to be viable. L-1As for managers and executives are valid for a maximum of seven years.

L-1 visas are dual intent, so it’s easy to apply for a green card in parallel. The EB-1C green card for multinational managers and executives is one possible path to permanent residence for startup founders.

H-1B specialty occupation visa

For your company to sponsor you for an H-1B specialty occupation visa, you will need to establish your U.S. company. The number of H-1B visas that the U.S. can issue each year is capped by Congress at 85,000 (20,000 of which are reserved for those with a master’s or higher degree). Because the demand for H-1Bs far outstrips the supply, the USCIS holds an electronic lottery in March to select registrants whose sponsors are eligible to apply.

Some individuals are able to qualify for cap-exempt H-1Bs without the lottery.  Also, policy changes have made the H-1B visa more appealing for founders, and we are expecting improvements to this year’s lottery.

O-1A extraordinary ability visa

I often recommend founders apply for an O-1A extraordinary ability visa if they meet the requirements because there is no prior employment history and no academic degree requirement, the wage is flexible, and it can be indefinitely renewed and structured for multiple engagements.

You must meet at least three of the following criteria to qualify, but for a strong case, I usually recommend at least four:

• Earned nationally or internationally recognized awards, including funding or acceptance into a highly competitive accelerator program.
• Invited to join a group that demands outstanding achievements.
• Featured in professional or major trade publications or major media.
• Made significant contributions to your field with your work generating widespread media attention or being used by others through licensing patents or contracts.
• Judged the work of others in your field, such as in hackathons or pitch competitions.
• Written articles that have been published in major media or professional publications.
• Considered a critical employee for a company with a distinguished reputation.
• Command higher than the average pay.

An O-1A can also put you in a great position to self-petition an EB-1A or EB-2 NIW green card, which means you don’t have to rely on a company or spouse for permanent residence.

E-2 treaty investor visa

The E-2 visa for treaty investors provides a great option for international founders whose home country has a trade and commerce treaty with the U.S. The U.S. Department of State maintains a list of treaty countries, which includes Estonia and more than 75 countries.

The E-2 enables international founders to live and work in the United States while investing substantial capital to build a business here. For a founder to qualify for an E-2, at least half of the U.S. business must be owned by people or companies from your country of citizenship. This can get complicated for startups that offer equity to VCs. Talk to a lawyer about your global corporate structure and your fundraising plans.

Like the L-1A, the E-2 application requires business plans, growth models, and organization charts. Although the E-2 requirements don’t specify a minimum investment amount, immigration officers look for upfront investments of $100,000 or more in office space, equipment, and inventory, which must already be spent prior to filing. Some founders have succeeded in qualifying with a transfer of intellectual property to their U.S. company. While the E-2 does not specifically require job creation, it’s often very helpful.

Enjoy exploring the U.S. market! You’ve got this!

— Sophie

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