U.S. Immigration for Indian Startup Founders

Do I need a work visa or a green card? 

If you want to work in the U.S., you’ll need some sort of work authorization, whether it is a visa or green card. You can come to the U.S. initially on a tourist visa, like the B-1/B-2, and even complete certain business-related activities. On the B-1/B-2, you can:

• 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

Anything beyond the scope of these types of tasks could be considered ‘violating your status’. Even if you are working for an Indian company remotely while traveling, or even if you’re not being paid, you should make sure you have proper work authorization.

Getting work authorization could be getting a U.S. work visa or green card. It usually makes sense to get started on a work visa, since green card applications are fastest when filed from within the U.S., and you’ll of course need some sort of visa to legally work in the U.S. while your green card is processing.

Nonimmigrant work visas for Indian founders:

The O-1A visa for individuals with extraordinary ability

Many founders don’t take advantage of the O-1A visa even though they do qualify for it. This is either because they don’t know it exists, they assume they don’t qualify for it, or they have been previously told that they don’t qualify for it even though they might.

To qualify, you need to meet at least three of eight flexible criteria. Through helping hundreds of startup founders get their O-1 visas approved, we have developed unique approaches to each O-1 criteria.

We’ve worked with Indian founders to convince USCIS that their work at their Indian startup meets the Critical Employment criteria, that the articles about them in Times of India and Your Story meet the Press criteria, that their venture capital funding meets the Awards criteria, that their accelerator participation counts as a Membership, and so on. Whether your qualifications are primarily in India or in the U.S., or a mix, we can help you position your profile for success!

The L-1 visa for executive and manager transfers

The L-1A visa tends to be a popular choice for founders who have worked at their company in India (or any other country) for at least one year within the past three, and would like to move to the U.S. The L-1 is an effective option for married co-founders or founders with spouses who want to work because the spouses of L-1 visa holders automatically receive work authorization.

To qualify, you must have worked at your company for at least one year within the past three as a manager or executive. If you meet the qualifications, you can transfer from the foreign company to a U.S. parent, subsidiary, brand, affiliate, or sister company.

It is worth keeping in mind that the L-1 requires you to set up a physical office space in the U.S., which may be a challenge for smaller startups. It also has limited validity, with only seven years total.

The H-1B visa for specialty occupation workers:

You’re probably familiar with the H-1B visa. While it is the most well-known U.S. work visa, it has limitations. From the lottery system to the annual caps, there is a certain level of luck required to get an H-1B. This deters some founders who want a visa quickly and easily.

However, the H-1B visa can still be a great option for many startup founders. Transferring on an H-1B is a fairly streamlined process, so if you are currently employed in the U.S. on an H-1B and would like to transfer to your new startup, that is certainly an option! Your startup will need to be able to pay you the prevailing wage for the H-1B, but if that is not an issue, transferring might be the easiest and fastest option for you right now.

Green card paths for Indian startup founders:

Getting a green card (also called a permanent resident card) requires you to complete two main steps. First, you must file an immigrant visa petition, such as an EB-1 or EB-2. Once this petition is filed, your priority date will be set. This priority date serves as your ‘place in line’ to file your green card application once you are ‘current’ on the visa bulletin.

The visa bulletin is based on country of birth, so make sure that you are reading the visa bulletin correctly based on India being your birth country.

Once you are current, you can file your green card application!

Back to immigrant petitions: the immigrant petition you choose will determine how quickly you are able to get your green card. The EB-1 is almost always the fastest 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 Indian startup founders:

EB-1A: First Preference Employment-Based Petition for Aliens of Extraordinary Ability:

Since the EB-1A category typically provides the fastest route to a green card for individuals born in India, it should be your top choice.

The downside to the EB-1A is that it is the most challenging immigrant petition to get approved. But with a reward of potentially saving many years, as well as a great deal of money that would otherwise be spent renewing visas, many Indian founders think that it is worth taking the risk and applying for the EB-1A.

Startup founders typically qualify for the EB-1A by meeting three or more of ten Extraordinary Ability criteria. Alternatively, you could qualify by receiving an internationally recognized prize or award, such as a Nobel Prize, Pulitzer, Oscar, or Olympic Medal.

In addition to receiving an award or meeting three criteria, your EB-1A materials need to convince the immigration officer that reviews who case that you have ‘sustained national or international acclaim’ in your field. They will assess this as they look through your qualifications.

If you’re intrigued by the EB-1, chat with our team to learn more.

EB-2 NIW: Second Preference Employment-Based Petition, National Interest Waiver

The EB-2 NIW is another option. While the wait time may be a bit longer, the EB-2 NIW is usually easier to get approved.

EB-2 NIW processing times are getting faster with USCIS's recent implementation of premium processing. This will cuts down the EB-2 NIW processing time from over a year to just 45 calendar days. While this does speed up the overall process, green card applications will still depend on the visa bulletin.

To qualify, you must either have an Advanced Degree or meet three of six “Exceptional Ability” criteria. In addition, you must show that you must qualify for the National Interest Waiver (NIW) with evidence that you meet three flexible criteria.

Legalpad is here to help!

After working with hundreds of founders like you to secure U.S. work visas and green cards, we know how confusing U.S. immigration law can feel, and we’re here to simplify it for you. Don’t hesitate to reach out to us to talk through your immigration options.