Whether you would like to expand your Chinese startup in the U.S., or you’re in the process of starting a new venture here, you’ll need to take into consideration your short-term visa options and possibly your long-term immigration options.
When is work authorization necessary?
Working in the U.S. without work authorization is illegal and considered ‘violating your status’. Regardless of if you are working for a U.S. company or a foreign company, being paid or not, working in a physical office or not, you could be violating your status. Even working remotely for your Chinese startup while traveling in the U.S. on a B-1/B-2 visa would be considered violating your status.
So what can you do for your startup in the U.S. without work authorization? While you cannot complete “everyday” work or be paid, you can still:
- Conduct market research and customer discovery
- Discuss planned investments and purchases with prospective co-founders
- Attend and participate in business meetings
- Develop business relationships, such as meeting with investors and clients
- Negotiate contracts
- Incorporate a U.S. company, apply for an EIN, establish a mailing address, and apply for a business license
If you’d like to be able to do more with your startup in the U.S., have the flexibility and freedom to travel in and out of the U.S. easily, and get on U.S. payroll, it is worth looking into a work visa or green card that could provide you with U.S. work authorization.
Work visa for Chinese startup founders:
The place to start with securing work authorization in the U.S. is a temporary work visa. While many Chinese founders want to get a green card right away, it can take a long time to actually make that happen. We recommend securing a work visa and then beginning to work on figuring out your green card path. Here are some work visas that are particularly popular amongst Chinese startup founders:
With unlimited extensions and flexible criteria, the O-1A is a highly advantageous visa option. Many startup founders qualify for the O-1, but if you don’t qualify yet, you may qualify soon. The O-1 is the only visa in which your venture capital funding, participation in accelerator programs, and other common startup founder accomplishments actually fit into the qualifications. Instead of looking at your academic background, the O-1 looks at a variety of flexible criteria that many startup founders meet.
Legalpad specializes in O-1 visas for startup founders. Many of our clients get their O-1 visas approved with us after being told by numerous immigration attorneys that they do not qualify. Even if you are doubtful about whether or not you qualify, we encourage you to reach out to our team so we can give you a professional opinion on your case.
If you have worked for your startup in China (or another country) for the past three years and would like to expand operations to the U.S., the L-1 visa could be a great option. The L-1A visa allows executives and managers to transfer from a foreign company to a U.S. parent, subsidiary, brand, affiliate, or sister company. To qualify, you must have been continually employed for the past three years at the foreign company.
An advantage of the L-1 visa is that the spouses of L-1 visa holders can freely work for any U.S. company. However, unlike other visa options, the L-1 requires you to set up a physical office space in the U.S., which may be a challenge for smaller startups. You don’t have to weigh the pros and cons alone, though, our team of immigration experts can help you figure out whether or not the L-1 is the best option for you!
The H-1B is easily the most well-known nonimmigrant visa option for working in the United States. Typically, if you qualify for the O-1 visa, the O-1 will provide you with more flexibility than the H-1B, but if you do not qualify for the O-1 yet, the H-1B is worth considering.
It is fairly easy to transfer from one U.S. company to another on an H-1B. If you are already working in the U.S. for another company and would like to launch your startup, simply transferring your H-1B status over to your startup could be a good option. Keep in mind that your startup will have to be able to pay you the prevailing wage required for the H-1B.
Filing a new H-1B presents more challenges, though. There is a lottery system and only a certain number of H-1Bs are approved each year. In addition, there are strict timelines for H-1B start dates and the criteria are fairly rigid. Yet the H-1B is still a viable visa option for many Chinese startup founders.
Green card paths for Chinese startup founders:
There are two main steps to getting a green card:
- Filing an immigrant visa petition (such as an EB-1 or EB-2)
- Filing the I-485 green card application
You can complete the first step of filing an immigrant visa petition at any point. As soon as you mail in your petition to the U.S. government, your priority date will be secured. The priority date determines your ‘place in line’ to file your I-485 green card application. You’ll be able to file your green card application as soon as your priority date is ‘current’ on the visa bulletin.
The green path card you choose will impact how quickly you are able to get your green card. For individuals born in China, the EB-1 has historically been the fasted route to getting a green card, but the visa bulletin changes each month. Here is an overview of the most common green card paths for Chinese startup founders:
The EB-1A will likely get you a green card the fastest, especially if you were born in mainland China, however, it is also the most challenging immigrant visa to get approved.
The EB-1A category is typically “current” on the visa bulletin for individuals born in mainland China, which means that you can file the green card application immediately. This is compared to the EB-2 NIW, which may prevent you from filing your green card for many years even after your EB-2 NIW has been filed and approved.
Another advantage that makes the EB-1A faster is that you can take advantage of premium processing. By paying an extra fee, you can receive a decision from USCIS within 15 calendar days of filing your EB-1A. You will still need to wait for your green card to be approved, though.
To qualify for the EB-1A, you must first either have received an internationally recognized prize or award, such as a Nobel Prize, Pulitzer, Oscar, or Olympic Medal, or meet at least three of ten Extraordinary Ability criteria. The immigration officer that reviews your case must also be convinced that you have ‘sustained national or international acclaim’ in your field, which should be demonstrated through your overall qualifications and background.
Since the EB-1A criteria are somewhat flexible, it is helpful to talk with experts in immigration for startup founders specifically. Chat with our team if you’d like to figure out what your EB-1A profile might look like.
The EB-2 NIW is another popular green card path for startup founders. If you don’t qualify for the EB-1, the EB-2 NIW is often the second-fastest path to a green card for Chinese-born individuals.
The EB-2 NIW criteria are very flexible, and require you to either have an Advanced Degree (U.S. Master's or foreign equivalent, or U.S. Bachelors or foreign equivalent plus five years of post-Bachelors work experience) or meet three of six “Exceptional Ability” criteria.
In addition, you must show that you must qualify for the National Interest Waiver (NIW) by showing that you meet three criteria. While most other immigrant petitions like the EB-1 focus solely on past accomplishments, the EB-2 NIW criteria consider the future impact of your work, and how your past accomplishments demonstrate how you will succeed in the future.
This makes the EB-2 NIW a great fit for individuals who are earlier on in their careers and don’t have the level of accomplishments required by the EB-1.
The main challenge with the EB-2 NIW is the time it takes you to get a green card. The visa bulletin shifts every month, but for individuals born in mainland China, it will often take at least a few years from the point of filing the EB-2 NIW until getting the green card in hand.
Over the course of 2022, USCIS is extending premium processing to the EB-2 NIW, which does speed up the EB-2 NIW process somewhat!
Let us help!
Regardless of your current immigration situation or the stage of your startup, we are here to help with all your business immigration needs! Check out our resources or reach out to us to talk through your immigration options.