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Sophie Alcorn , attorney , author and founding father ofAlcorn Immigration Lawin Silicon Valley , California , is an award - win Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization . Sophie is passionate about pass borderline , expanding opportunity , and connecting the world by practicing compassionate , visionary , and expert immigration police . link with SophieonLinkedInandTwitter .
TechCrunch+ phallus receive accession to hebdomadary “ Ask Sophie ” columns;use promo code ALCORN to buy a one- or two - year subscription for 50 % off .
Dear Sophie ,
My colleague and I work for a large tech troupe . We have an idea that we want to pursue for our startup . We ’re both on H-1B visa . Our I-140 EB-2 fleeceable carte du jour petitions have been approved , but we ’re waiting for our priority date to become current for our green card . How do we get our H-1Bs transfer to a young inauguration ? Can our green cards be transferred to our raw startup too ?
— Emerging Entrepreneur
Dear Emerging ,
Congrats on deciding to create your own company ! I ’ve fix result and alternative for you !
Join us at TechCrunch Sessions: AI
Exhibit at TechCrunch Sessions: AI
give your fresh journeying , take a listen to my compelling conversation withMiles Randleabout his venture studio experience in aid founders sail in-migration . We shed brightness on how the visa and green card process can affect how cursorily founders reach successful startup milepost and the traits that contribute to a successful father .
The unforesightful solution to your 2d question is regrettably no , the I-140s for yourEB-2advanced degree or exceeding ability green cards are not assignable to your startup . Your startup will have to file a new I-140 to patronise you for an utilisation - free-base green card or you will have to ego - orison for an EB-1A over-the-top ability fleeceable card or EB-2 NIW ( National Interest Waiver ) greenish wit . However , your anteriority day of the month will be “ transferable . ” And if you made it to the I-485 leg , you might have other portability options .
I recommend consulting an immigration attorney about transfer your H-1B and green add-in options that fulfill your plans and goals . An immigration attorney can work with you to see the good scheme — and relief choice — for you and your co-worker to reach your dream . Now , allow ’s dive in !
Setting up your business
Keep in mind that you are only allowed to work out for the company that patronize yourH-1Bspecialty line of work visa . If you make for for your inauguration — even without pay — before transferring your H-1B , you chance mislay not only your status but also your ability to remain in the United States . Talk to an in-migration lawyer about what is and is n’t allowed and the right order of choice to de - put on the line your personal state of affairs .
Generally , U.S. investors want to deal with Delaware C potbelly , and just creating one is not considered “ work ” under immigration legal philosophy . However , you ’ll want to be very designed about what , if any , actions you take after the ship’s company is formed .
For the formation process , talk to a incorporated attorney to square up how to best structure your company , including calculate over your and your fellow ’s offer alphabetic character and any intellectual property agreements from your current employer . For now , start mapping out your part at your startup , how many co - founders you will have and their roles , how much equity everybody will take in , and prospective investors for your startup so your corporate attorney and immigration lawyer can evaluate the viability of the program .
Certain exploratory business activities are likely authorized , such as meeting with prospective hires and investors and doing inquiry to determine more about the market place for your inauguration . However , for you and your fellow worker to transfer your H-1B visas to your inauguration , your startup will require to be operational and have some rail or traction to demonstrate its power to pay you both the hold wage based on your job duties and location where you will be form and its ability to do so for at least a year . To get your inauguration to this full point , you and your fellow worker may need to take on a co - founder who can put in the work , or you might need to clock your own visa carry-over very carefully .
Once the new fellowship has officially extended you a job offer , it can initiate the H-1B transferral process , including even if you are a majority owner under new USCIS ( U.S. Citizenship and Immigration Services ) guidance . As an alternative , look at the O-1A extraordinary ability visa , which is a much quicker visa alternative and would give you and your colleague more tractableness and peace of creative thinker . I discuss the O-1A in more detail below .
Timing is key
Timing is an important consideration when transferring your H-1B to another ship’s company whether or not that party is your own .
The maximum stay in the United States on an H-1B is six yearsunlessyou have an sanction I-140 employment - establish gullible carte petition , which you do . Your employer can quest an H-1B extension service beyond the maximum six - twelvemonth arrest as long as you have an approved I-140 and that I-140 remain valid .
You and your workfellow will retain your antecedence date from the I-140 EB-2 immature card petition your employer filed on your behalf . That think you will be able to wield your place in the light-green wag line even though your employer withdraws your I-140 and you have to file a new I-140 gullible card petition .
You and your co-worker should turn over self - petitioning for either an EB-1A extraordinary power unripe card or EB-2 NIW ( National Interest Waiver ) for someone with an advanced degree or exceptional ability . If either you or your confrere were yield in India or China , I suggest building up your qualification to implement for an O-1A and then an EB-1A. You still face a hold , but because the EB-1 is a first - druthers light-green menu , the waiting clip is days — if not decade — shorter than the 2nd - preference EB-2 category .
Take a look at thiscolumnin which I talk more about the EB-1A and EB-2 NIW light-green circuit card .
Transferring your H-1B
“ remove ” your and your confrere ’s H-1B to your startup means your inauguration will file raw H-1B orison on your behalf without let to go through the yearly H-1B drawing .
First , your startup need to get its Federal Employer Identification Number ( FEIN ) verify by the U.S. Department of Labor ’s Office of Foreign Labor Certification . It should have a bank account and enough funds to cover your salary or a occupation program that can clearly demonstrate how your persist wage will be paid during your future H-1B period .
After that , your startup will register a Labor Condition software ( LCA ) with the Department of Labor on behalf of you and your colleague . For the LCA , your startup must anticipate to pay off you and your colleague at least the prevailing wage based on your position and employment location and ensure that your employment condition wo n’t negatively touch American workers . Employers do n’t require to submit grounds to the Department of Labor with the LCA , but they must send a copy of the H-1B notice , which can be done electronically , and keep all supporting document in a file and make it usable for public viewing .
Once the LCA is approved , your inauguration can file an I-129 H-1B petition to the USCIS . retard out this podcast onwhat gain a strong H-1Band look at theAsk Sophie columnfrom last workweek in which I discuss how to march an employer - employee kinship exists between a startup and its founder .
For an H-1B transferral , if you are presently maintaining valid H-1B status , you’re able to start function when your startup welcome a reception notice from the USCIS !
Recent new guidance from the USCIS clarifies that even if you do n’t have a board that can fire you , and even if you do own more than half of the fairness of your inauguration , it is still possible to successfully prevail an H-1B as an possessor - beneficiary . This is great word for founders !
Considering the O-1A
The preparation can take longer , but I sometimes recommend that founders hold for anO-1Avisa if they meet the standards for extraordinary ability . The O-1A does not have a reign wage requirement or a maximum stop like the H-1B. The O-1A can be extended indefinitely as long as the conditions under which it was originally granted remain valid .
You may have to invest a few months and a lilliputian focused sweat into building up your qualifications for the O-1A. You must satisfy at least three of the follow criteria to specify , but for a strong case , I normally commend encounter at least four :
An O-1A can also put you in a neat position to act on an EB-1A or EB-2 NIW green card .
You ’ve arrest this !
— Sophie
Have a head for Sophie?Ask it here . We hold the rightfulness to edit your submission for pellucidity and/or space .
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