Immigration Hacking – How to get that Visa you’ve always wanted

by Wendy Soon on February 24, 2014

iStock_000034510382Small_banner2I have a dream. I believe you have one too. We all have dreams. And many of us have dreams that are associated with living in America. That’s the American Dream. But one biggest obstacle to fulfilling that American Dream, is getting that oh-so-hard-to-get US Visa!! Probably even more so, for aspiring entrepreneurs who either don’t intend to be employed by anyone before starting a business, or who want to quit their current job to work on their startup fulltime, but cannot due to visa issues. So what are the ways to get around that hateful visa issue? Or is there even any possibility to overcome that obstacle to your American Dream?

 

Immigration lawyer Sweta Kandelwal, who also held all sorts of US visas, gave a comprehensive lecture on the various types of visas and how we can use each of them to our advantage.

Some of her words of advice regarding visa applications:

  1. A good attorney can determine the number of visa options available to you. Invest in him/her.

  2. Entrepreneur initiative is an old mine in a new pocket. The laws have not changed. There is no so-called startup visa. But we can now use old visas for modern day businesses and purposes. Use the same solutions, but adapt them to our situations.

  3. Be creative, and customize the solutions to you. There is (fortunately or unfortunately), no cookie cutter approach. There is no one size fits all solution. Which then means that there are many more visa options that you think — only limited by your own creativity. (Or your attorney’s, for that matter).

  4. Plan early. Be proactive. Find out what options you have, before you need them desperately. Visa application takes time, and you don’t want to be tied by time and thus limit your own visa choices as a result.

  5. Consider ALL kinds of visas. Entrepreneur visas tend to be non-immigrant visas, because these are cheaper and faster. But don’t forget to consider the immigrant visas too. It never hurts to have more options.

 

The various types of Visas, what they are good for, and their limitations:

 

  1. B1 – Useful in initial part of business. More for retail businesses. Limited, cannot be employed in the US.

  2. F1/OPT/CPT (students) – Done after completing F1 student program. Lasts only for 17 months maximum, starting maximum 12 months upon graduation. Requires employment with accredited company and graduate of an accredited school. Cannot be unemployed for more than 90 days at a stretch, or visa will become void. Easy to apply. No limitation of minimum wage. Unpaid positions are allowed, as long as it is in compliance with state employment laws (not federal laws). For example, California has provisions for unpaid internships and employments, but there are very strict requirements to qualify for that. Recommended to start OPT after April 1st, so that there is sufficient time to apply for H1B in April thereafter and have a window of overlap to transition the change of visa status. (if the OPT starts in February, the visa will have expired in February the following year, before the H1B visa application starts in April). Can start a company while under OPT, but company needs to be approved.

  3. E2 – only available to certain nationalities with treaties with the US. Good option for entrepreneurs. Treaty national needs to own >50% of the business, and have control over the business. Foreign national must be employed or be an investor. If there are 2 business partners from different countries holding the same E2 visa, they both must have ownership and control. Investment has to be an active business that is substantial, and generates more than a marginal profit. It needs to be legitimate, and have a proper business plan. Loans cannot be used for treaty business, unless if loan is secured by personal assets (not using company assets). There is no legal minimum amount to quality for the investment size — $40k to $50k can also be considered. The applicant needs to express willingness to forfeit the investment if business fails. Henceforth, other investments such as buying a house is not considered as a valid investment for this visa. There needs to be no immigration intent. Which means that the applicant will need to find a way to get out of this visa if there is the intention to eventually get green card / citizenship.

  4. H1B (standard work, professional worker) – Especially important time-wise, due to the limited quota every year. Opens in April 1 yearly, available only until the quota is met — usually only a couple of days. Additional 20,000 openings if you have a masters degree from the US. Prohibitively high minimum wage, which can be a limitation to startups. Position needs to be a specialization, meaning requiring at least a bachelor’s degree. e.g. CEO doesn’t really require a bachelor’s degree. Hence need to substitute the naming with something like “Business manager”. Only allowed to work under the company you registered the visa under. Need to demonstrate employee-employer relationship. As long as that is proven, and startup can afford to pay the lawyer to apply for the H1B, this is a good option.

  5. H1-parttime – You can hold a fulltime H1B with a company, incorporate a startup, and get a parttime H1 and hold it at the same time as the fultime H1. Can still get paid by the company, and file tax returns with the company, while still working on the startup at the same time.

  6. H4 – cannot work.

  7. O1 (extraordinary ability) – extraordinary in respective fields of work. Must meet at least 3 of a list of 10 criteria. Sweta’s personal favorite, because it tends to be underrated and underused. Available to individuals with extraordinary ability in arts, business or sciences. There are creative ways to make this work for yourself, different ways to document items to qualify for these criteria. Use modern interpretations for these traditional requirements. E.g. blogs can be considered a publication. Research grants can be considered as awards. Membership to a unique meetup group can be considered as membership to a professional group. No quota, no restrictions on salary, no restriction on time of the year to apply. Can be extended indefinitely. Gives a much quicker path to a green card, especially if you are from India or China (which falls under EB1).

  8. Visa waiver program – not a visa, so cannot change status to another visa. Need to leave the US and re-enter with another visa. Not a long term solution.

  9. L1 – Great if you want to start the business at your home country, then move it to the US after some time. Great if CEO needs to shuttle between both countries, as long as significant time is spent in the US, and the business is based in the US. Much quicker path to a green card, as compared to all other non-immigrant visas. Lasts for 1 year initially, after which you need to prove that the company has grown significantly. Employment without salary can be a challenge.

  10. V1 (visitor) – Need to demonstrate no immigration intent. Cannot be employed in the US. Can start a business, common with entrepreneurs, but cannot run a payroll with this visa. Cannot make remuneration. Convenient, economical, quick to process. Great for meeting co-founders, meeting investors, but will get into trouble if used extensively for running the business or working for the startup. Gray area as to what activity is permissible employment and what is not. e.g. a tailor takes client measurements in the US, but goes back to home country to make the clothes — is that considered working?

  11. EB5 – good long term option. More expensive. Investor-based visa. At least half a million investment / one million in metropolitan area. Need to hire at least 10 US workers full time. Investor needs to be involved in the day to day functioning of the company. Source of funds need to be legitimate and documentable. Need a comprehensive business requirement. Investmentment doesn’t need to be all in your own business, but can be distributed to >1 business/projects. Can pool together with other EB5 applicants to invest in general (e.g. to roads, bridges, etc). Can apply first then start own business, or start first then apply for this green card. China accounts for >80% of the EB5 visas now.

For the full lecture videos, please click HERE.

For the slides to Sweta’s lecture, please click HERE.

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