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Staying in the U.S. After Your OPT Expires

An Immigration Guide for Student Founders

Starting a U.S. company early in your career is something to celebrate! But with the clock ticking on your OPT, you need to get a new form of U.S. work authorization. Let's dive into immigration solutions for founders who originally came to the U.S. as international students.

student founders working together


Introduction: Work Authorization Post-OPT

Optional Practical Training (OPT) allows international students on F-1 visas to work temporarily for a U.S. company. Students who have completed degrees in STEM fields may also apply for STEM OPT, allowing them to work in the U.S. even longer.

After OPT or STEM OPT expires, international students only have a grace period of 60 days. During that short time, you must either leave the U.S. or obtain an alternative form of work authorization.

There are several visa and green card options available to international workers looking to stay in the U.S. after their OPT expires. In this article, we cover the best visas and green cards for international student founders transitioning off of OPT.

Nonimmigrant Category: Work Visas For International Student Founders

Nonimmigrant can be a confusing term. In U.S. immigration, it simply refers to temporary work visas, including the O-1A, H-1B, E-2, and TN. These visas allow you to stay in the U.S. for a specified period and work for a sponsoring company. As a founder, that company would be your startup. 

The O-1A Visa for Individuals with Extraordinary Ability

Did you know that many founders who've received VC funding or gone through an accelerator qualify for the O-1 visa? The O-1 is designed for individuals at the top of their field. But many early-stage founders qualify! To qualify, you must meet at least three of eight flexible criteria

Have you raised VC funding? That is your first criterion (Awards). Gone through an accelerator? Second criterion (Membership). Articles published about you in TechCrunch, Forbes, or smaller local news outlets? Third criterion (Published Materials). Judged a hackathon? That is your fourth criterion (Judging)! Most founders also meet two other criteria: Original Contributions and Critical Employment.

The O-1 stands out amongst other work visas because it is valid for three years and can be extended indefinitely. There are no degree or wage requirements and no annual cap. 

The H-1B Visa for Specialty Occupation Workers

Chances are, you already know a bit about the H-1B visa. But is it a good fit for early-stage founders?

The challenge many founders face with the H-1B is the wage requirement. If you want to join your company as a C-suite executive, such as CEO, CTO, or COO, you'll have to pay yourself the prevailing wage required for all C-suite executives (regardless of company size or stage). If that isn't a problem, the H-1B is a solid option.

The E-2 Visa for Treaty Investors

The E-2 visa enables nationals from certain treaty countries to invest in a U.S. business and work for that business. The investment amount varies depending on the type of company. Some startup founders qualify for the E-2 by investing seed money into their company. 

One thing to know if you’re looking into this visa is that the E-2 requires that at least 50% of the company is owned by nationals of a treaty country. If you plan on diluting your ownership below 50% as you raise funding, the E-2 will no longer be an option for you.

The TN Visa for NAFTA Professionals

The TN work visa is available to Canadian and Mexican citizens in specific roles. The TN is often a challenging visa for startup founders because of how rigid the role requirements are. It is still a viable option for certain individuals. For example, you might be able to work as a CTO under the "engineer" occupation, but you would be limited to specific duties that "engineers" can perform based on TN regulations. 

Immigrant Category: Green Card Paths For International Student Founders

A green card makes you a permanent resident of the U.S. With a green card, you can work for any U.S. company without needing a visa. The green card also puts you on the path to becoming a U.S. citizen. 

Green card processing times are constantly changing, but from start to finish, you should expect to wait at least a year before being able to work on your green card. While you wait for your green card, you'll need work authorization to remain in the U.S. and work for your company. 

If you know you'll have work authorization through OPT or a work visa for the next year, it might be a good time to start your green card process.

There are two steps to getting a green card. Step one is the immigrant petition (think EB-1, EB-2 NIW) that gets you a "spot in line" for step two: filing your actual green card application.  

Everyone who gets a green card based on their employment files the same green card application (Form I-485), but there are many different immigrant petitions. Out of these, which is the best for post-OPT startup founders?

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

The EB-2 NIW is the most popular nonimmigrant petition amongst international startup founders. Rather than focusing on your past accomplishments, the EB-2 NIW is heavily focused on how your future contributions will impact the U.S. This makes it a good fit for earlier-stage founders. 

EB-2 NIW processing times are getting faster since USCIS implemented premium processing for EB-2 NIWs in 2022. This will reduce 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. 

The EB-2 NIW is usually not the best choice for individuals born in India or China or for individuals who qualify for the EB-1A and need a green card quickly. This is because the wait times to get your green card can be significantly longer than the EB-1A for individuals born in India and China. 

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

The EB-1A is an advantageous immigrant petition, especially for individuals born in India or China. If you were born in one of these two countries, the EB-1A could significantly reduce the wait time to get your green card.  

However, many startup founders choose the EB-2 NIW instead of the EB-1A because it can be very challenging to qualify for the EB-1A. The EB-1A is meant for individuals at the very top of their fields. The criteria for the EB-1A are almost identical to the O-1 visa criteria. However, the EB-1 is reviewed with much more scrutiny. 

Choosing the Best Immigration Path Post-OPT:

As a startup founder already physically in the U.S., there are many immigration options when your OPT expires. The best thing you can do now is understand your options and make a plan moving forward. For example, if you aren't qualified for the O-1 visa, there are steps you can take now to ensure you're qualified soon. 

Legalpad is also here as a resource to support your immigration journey. Reach out to us for a one-on-one consultation to get started. 

About the author:

Annie Blay

Content Marketing Specialist

Before joining the marketing team, Annie helped over 60 Legalpad clients navigate U.S. immigration on the client services team.