Navigating U.S. Visa Options for International Founders

The United States has long been a hub for innovation and entrepreneurship, attracting talent from around the world. Immigrants have founded over half (319 out of 582, or 55%) of America’s unicorns - startup companies valued at $1 billion or more - according to a recent analysis by the National Foundation for American Policy (NFAP). 

For international founders eager to launch or expand their startups in the U.S., navigating the visa landscape is a critical step. In this article, we’ll explore the most relevant visa options available to founders and key startup employees, helping you unlock the potential of the U.S. startup ecosystem.

B-1 Temporary Business Visitor

The B-1 business visitor visa is an option for international founders who are coming to the U.S. for a short period of time (typically 6 months) for business-related activities.

The types of activities that a B-1 business visitor may engage in include: 

• attending business meetings 

• securing funding 

• negotiating contracts 

• securing office space 

• consulting with associates

• attending conferences 

However, the B-1 visa does not permit an international founder to engage in actual work or establish a business. If you are coming to secure funding for a new business or startup, you cannot remain in the United States after securing the funding to start actual operations or to manage the business, unless you change status to another visa classification that authorizes employment in the United States.

F-1 International Students 

International students studying in the U.S. on an F-1 visa may start, own, and work for their own business or startup entity during their initial 12 month period of Optional Practical Training (OPT). The business or startup and the work the F-1 student performs should be directly related to their major area of study. 

In addition, F-1 students who graduate with a qualified Science, Technology, Engineering or Mathematics (STEM) degree, and are currently in an approved post-completion OPT period based on a designated STEM degree, may apply for a 24-month STEM extension of their post-completion OPT. 

An F-1 student who launches a startup or business in the U.S. may qualify for a 2-year STEM OPT extension to work for their startup, if:

• the startup is established and the F-1 student founder is a bona-fide employee of the startup employer signing the Form I-983 Training Plan for STEM OPT students. It is important to note here that the F-1 student founder cannot sign the Form I-983, STEM OPT Training Plan attestation on their own behalf   

• the startup participates in the E-Verify program, and compensates the F-1 student founder in line with similarly situated U.S. workers

• the startup follows the Form I-983 Training Plan and has the resources to comply with the proposed training plan 

After their F-1 OPT or STEM OPT extension period has ended, the student may not work for their startup or for other employers unless they qualify for and receive a nonimmigrant or immigrant status that authorizes them to continue working in the United States.  

H-1B Specialty Occupation

International founders can qualify for H-1B status at their U.S. startup if they will be working in a specialty occupation and they have the necessary educational qualifications. Notably, the founder can also hold an ownership interest in the startup that sponsors their H-1B.

A company where an international founder has a controlling interest—meaning they own more than 50% or have majority rights—can qualify as the employer. This allows the startup to petition for H-1B status on behalf of the founder. The founder in such cases is both an owner of the petitioning entity and a beneficiary of the petition, and is referred to as a “beneficiary owner.”

A crucial aspect of this arrangement is demonstrating an employer-employee relationship between the beneficiary owner and the petitioning U.S. employer. This relationship can be established if the startup will hire, pay, fire, supervise, or otherwise control the work of the international founder. If the facts show that the petitioning entity meets at least one of these criteria, it can establish the employer-employee relationship.

It’s important to note that all current H-1B regulations and policies still apply. This includes the requirement to register for and be selected in the CAP H-1B lottery, and file an H-1B petition in the stipulated filing window. However, international founders who are already working in H-1B status in the U.S. (or have a prior approved H-1B that is still valid) can skip the lottery process. In these cases, the U.S. startup entity can file a cap-exempt H-1B petition on behalf of the international founder.  

O-1A Extraordinary Ability Individuals 

International founders may be eligible for an O-1A visa if they have extraordinary ability in their field of expertise, which can be demonstrated by sustained national or international acclaim and recognition. Extraordinary ability means you have a level of expertise indicating you are one of the small percentage of people who have risen to the very top of your field. 

One of the key requirements for an O-1 petition is that a U.S. employer or U.S. agent must file the petition on behalf of the beneficiary. While O-1 beneficiaries may not self-petition, a separate legal entity you own (such as a corporation or limited liability company) may file a petition on your behalf. Thus, an international founder may work for a startup entity in which they have an ownership interest. 

The next essential requirement is to demonstrate that the international founder has extraordinary ability in their field of expertise. To establish eligibility for classification as an O-1A nonimmigrant, you must provide initial evidence that you either have received a major internationally recognized award, or submit initial evidence that satisfies at least three of the following eight evidentiary criteria:

1. beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in their field

2. beneficiary’s membership in associations in their field, which require outstanding achievements of their members

3. Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in their field

4. beneficiary's participation on a panel, or individually, as a judge of the work of others

5. beneficiary's original scientific, scholarly, or business-related contributions of major significance

6. beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media

7. beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation 

8. beneficiary has either commanded a high salary or will command a high salary or other remuneration for services

The third key requirement for an international founder to qualify for an O-1 is to demonstrate that they will continue working in their field of expertise. This can be evidenced by providing copies of contracts between the founder and the petitioning startup.

Lastly, an O-1 petition requires an advisory opinion from an appropriate peer group. The advisory opinion must be written by an individual or group with expertise in the international founder’s field. The consultation should describe the nature of the founder’s work, their qualifications, ability and achievements in their field of expertise.

L-1A Intracompany Transferees 

The L-1A visa may be a viable option for international founders who have an existing business outside the U.S. and wish to expand their operations. This visa allows multinational companies to transfer employees, including the founders, to a U.S. parent company, branch office, affiliate, or subsidiary.

You may be eligible for an L-1A visa as an international founder if you meet the following requirements: 

• the U.S. entity filing the L-1A petition on your behalf has a qualifying relationship with your foreign employer. The U.S. entity must be a parent, affiliate, subsidiary, or branch of the foreign entity, and both the U.S. entity and the foreign entity must continue to share common ownership and control.

• you are an executive or manager who has worked abroad for a qualifying organization (an affiliate, parent, subsidiary or branch) for at least one year in the three years preceding the filing of your L-1 petition or your admission to the U.S. 

• the foreign employer must seek to transfer you to the United States to work as an executive or manager

• the foreign employer may transfer you to a U.S. entity that is already doing business or you may be transferred to start a new office. A new office is an organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. 

E-3 Specialty Occupation Professionals from Australia

The E-3 specialty occupation classification applies only to nationals of Australia. This visa category may be an option for founders who are Australian nationals and are coming to the United States to perform services in a specialty occupation.

To qualify for an E-3 visa, you need to demonstrate that you:

• are a national of Australia

• have a legitimate offer of employment in the United States

• possess the necessary academic or other qualifying credentials

• will fill a position that qualifies as a specialty occupation

Unlike the H-1B, the E-3 visa is not subject to a lottery process and is therefore an attractive option for Australian professionals seeking work in the U.S. The E-3 visa is valid for an initial 2 year period, with up to 2 years per extension, and no maximum number of extensions.

TN (“Trade NAFTA”) Professionals from Canada and Mexico

The TN nonimmigrant classification allows Canadian and Mexican citizens to work in the U.S. in professional-level roles for either U.S. or foreign employers. This visa is only available to citizens of Canada and Mexico who are members of a profession specified in the United States-Mexico-Canada Agreement (USMCA).

To qualify, applicants must meet the education and/or experience requirements outlined in the USMCA for their specific profession. Typically, a bachelor’s degree is required for most TN professions, though there are a few exceptions. 

Startup founders who are citizens of Canada or Mexico may qualify for TN classification, if they are a member of a profession listed in the USMCA (e.g. Engineer, Economist, Mathematician, Biochemist, Physicist, etc.) and possess the necessary education and experience requirements. 

Conclusion

For international founders, the U.S. offers a variety of visa options, each with its own requirements and advantages. Choosing the right visa is critical for successfully launching and growing a business in this competitive landscape. If you need help evaluating and navigating your visa options in the U.S., please reach out to us at shilpi@bimmigrationlaw.com. We are here to help!