Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my 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 my full-time engineering role at another company.
How can I transfer my visa to my startup? How do we structure the startup for immigration success?
—Restless & Resolved
Dear Restless & Resolved,
Congrats on embarking on this exciting new adventure and taking the first step toward living your dreams!
H-1B transfer is tricky, but it’s possible!
The short answer to your first question is: yes, you can transfer your H-1B visa to your new startup. However, it’s a tricky process, and it’s important to establish the correct, compliant foundation before proceeding.
This set-up process can take time (several months), but the peace of mind you’ll have from knowing that everything is correct will be priceless. You should talk to 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 determine the best strategy for you and any co-founders based on your personal and business goals.
You will need to take steps to qualify your company to petition you for the H-1B transfer, such as taking on a co-founder and getting funding for your startup.
Structuring your startup
To transfer your H-1B to your startup, you may need to give up control of your startup, (sometimes but not always) give up a major stake in it, and ensure it is structured to meet all immigration visa requirements.
To meet the sponsorship qualifications, you must demonstrate to U.S. Citizenship and Immigration Services (USCIS) that:
- Your startup and you have an employer-employee relationship. This often means you must not own more than 50% of your company, and someone else must formally hire you, supervise you and your work, and have the ability to fire you.
- Your startup has the ability to pay you the prevailing wage based on your position and geographical location as well as cover operations for the term of the visa petition (usually up to 3 years for an H-1B transfer).
Start planning now and map out your role at your startup, how many co-founders you will have, how much equity everybody else would receive, the roles of your co-founders, and prospective investors. This will enable your attorney to see if your plan is viable and offer any alternatives.