Here’s another edition from “Dear Sophie,” the advice column that answers immigration-related questions about working at tech companies.
“Your questions are vital to the spread of knowledge that empowers people around the world to rise above the limits and pursue their dreams,” said Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder, or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”
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On Tuesday, April 26 at 2:30 PM PDT / 5:30 PM EDT, Sophie Alcorn will answer questions about immigration law for startups during a Twitter Space hosted by Senior Editor Walter Thompson.
The conversation is open to everyone, so ask your questions on Twitter and click here to get a reminder when the chat starts†
What are the visa options for an advanced US university graduate who wants to become a co-founder of a startup after graduation?
Can the newly founded company or other co-founders sponsor the recent graduate?
— Forward-looking founder
A founder completing an advanced degree has several options! First let me ask your second question: Yes, it is possible for a newly established company that exists in good faith to sponsor a recent graduate. For most student founders, the straight line from OPT to STEM is OPT as they prepare to qualify for an O-1A. Once on O-1A, it is possible to start the green card through EB-2 NIW or EB-1A for individuals born in India or China.
All work visas and most employment-based green cards require a sponsoring company (or in the case of an O-1A, an agent). The EB-1A green card and EB-2 NIW (National Interest Waiver) green card are the exceptions (they both allow an individual to apply on their own, or an employer can sponsor an employee and apply on behalf of the employee Submit ).
Often, employer sponsorship requires the company to demonstrate that there is an employer-employee relationship between the sponsoring company and the person being sponsored for the visa or green card. One way to demonstrate this could be if the co-founder seeking a visa or green card owns less than 50% of the startup and if there is another person in the company offering the person a job, such as a director or a director. Talk to your immigration and corporate attorneys as there are multiple ways to legally structure this depending on your particular immigration path of choice.
In order for a company to successfully sponsor a co-founder and other potential associates for visa and green cards, founders need to be aware of all the options available. Founders will also want potential investors to feel comfortable investing in the company as they complete the due diligence, so proper initial business structure and legal compliance are important. I recommend that you consult both a corporate attorney and an immigration attorney for help charting the path forward for the startup and the prospective graduate.
Most F-1 graduates qualify for at least one year of work permit called optional practical training (OPT). If the founder qualifies and receives their EAD card or work permit, they will be eligible to work at the newly established startup for 12 months. F-1 students can apply for OPT up to 90 days before graduation, but no later than 60 days after that.
Students should request the Designated School Officer (DSO) of their academic institution to recommend them for OPT by signing their Form I-20 (Certification of Eligibility for Nonimmigrant Student Status) and updating their record in the Student and Exchange Visitor Information System (SEVIS). Once that is done, students must submit Form I-765 (Application for Employment Authorization) to U.S. Citizenship and Immigration Services (USCIS), which is now available for electronic filing online.