Click here for another part Advice for answering immigration-related questions about working for tech companies Dear Sophie column
“Your question is essential to the dissemination of knowledge that enables people around the world to pursue their dreams across borders,” says Sophie Alcorn, an immigration attorney in Silicon Valley. “For HR professionals, founders, or anyone looking for a job in Silicon Valley, I’d like to answer your questions in my next column.”
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Dear Sophie
I made a decision: This is the year I finally live my dream and build my startup! I currently have an H-1B for a full time engineering role at another company .
How do I transfer my visa to a startup? How do I configure my startup for immigration success?
— Restless & Solved
Dear Restless Solved,
Congratulations on embarking on this exciting new adventure and taking the first step towards making your dreams come true!
H-1B transfer is difficult, but possible!
The short answer to your first question is: Yes, you can transfer your H-1B visa to a new startup. However, this is a tricky process and it is important to establish the correct compliant foundation before proceeding.
This setup process can take some time (months), but the peace of mind of knowing everything is right is invaluable. You should consult both a corporate lawyer and an immigration lawyer. A corporate lawyer can help you form a company, including drafting bylaws, and an immigration lawyer can help you determine the best strategy for you and your co-founders based on your personal and business goals.
Your company must take the necessary steps to qualify for the H-1B transfer, including hiring co-founders to raise startup capital.
Structuring your startup
Transferring an H-1B to a startup may (sometimes, but not always) require you to relinquish control of the startup, relinquish its principal equity, and comply with all immigrant visa requirements. Make sure it is configured.
Image credit: Joanna Buniak / Sophie Alcorn (opens in new window)
To qualify as a sponsor, you must prove to the U.S. Citizenship and Immigration Service (USCIS) that:
- Your startup and you are in an employer-employee relationship. This often means he must not own more than 50% of the company and someone else must have the ability to formally hire you, oversee you and your work, and fire you. means that it will not
- Your startup can pay a typical wage based on your status and geographic location and cover work for the duration of your visa petition (typically up to 3 years for H-1B transfers) .
Plan now to plan your role in the startup, the number of co-founders, the equity everyone else will receive, the co-founder’s role, and future investors. This will allow the attorney to see if your plan is viable and offer alternatives.
