Once you've finally found the perfect candidate, you shouldn't have to worry about the hiring process – even if the candidate needs a U.S. visa.
To help you navigate the U.S. immigration law, we've outlined the two primary visa options you should know. We've also compared these visa options with a few others.
The two most popular startup visas for entrepreneurs and other hires
H-1B visa for specialty occupation workers
The H-1B visa is easily the most popular U.S. visa status and certainly, the most talked about. For background, the H-1B is a nonimmigrant visa that allows U.S. companies to hire highly-trained foreign workers with a bachelor's degree or higher (or the equivalent in years of experience) in a specialized field.
The U.S. Citizenship and Immigration Services (USCIS) has a cap of 85,000 new H-1B visas each year: 65,000 for individuals with a bachelor's degree or higher and an additional 20,000 for those with a U.S. master's degree or higher. Some employers are exempt from this cap, including nonprofits, hospitals, and universities. An H-1B visa can be extended up to six years.
While many H-1B recipients are doctors, lawyers, academic researchers, and professors, most H-1B visas are awarded to tech companies that hire STEM professionals such as software developers, data scientists, and other types of engineers.
O-1 visa for foreign entrepreneurs, executives, and key employees
USCIS defines the O-1A as a work visa for an individual with "extraordinary ability in the sciences, arts, education, business, or athletics."
Some consider the O-1 the startup visa. Either way, the O-1A visa is a favorite visa for entrepreneurs, and it is also a viable option for executives and other key employees at startups.
Candidates can qualify for the O-1A visa if they have received a major internationally recognized award (think Nobel Prize or Oscar) or meet at least three of eight flexible criteria.
Many startup founders qualify for the O-1 by raising venture capital, going through accelerators and incubators, receiving attention in the press, and inventing new technology. Although it's easier for a founder to meet the O-1 qualifications, plenty of non-founder candidates also qualify.
The O-1 visa vs the H-1B visa
While the O-1 visa tends to be more advantageous than the H-1B, only some people qualify for the O-1.
What makes the O-1 so advantageous:
- Unlimited extensions: While both H-1B and O-1 visas are granted for three-year increments, H-1B visas can only be extended once for a maximum of six years (there are some exceptions, e.g., for people who are waiting to get their green card) whereas O-1 visas can be extended indefinitely.
- There is no prevailing wage for the employer. H-1B employers must be able to pay a federally-set minimum salary based on the occupation type, geographic location, etc. Employers who want to bring an O-1 visa recipient on board aren't subject to these requirements, which can be great for startups who tend to give out more equity than salary in the early stages.
- There's no degree requirement. H-1B visa candidates must hold at least a bachelor's degree in their specialty field. In contrast, the O-1 has no degree requirements whatsoever.
For these reasons, international entrepreneurs and startups tend to opt for the O-1 if they qualify.
However, there are extra hoops to jump through as compared to the H-1B visa. For instance, each O-1 visa criterion can require a hundred or more pages of evidence. Since O-1 applicants need to meet three or more criteria, gathering evidence can sometimes be a lengthy process. Meanwhile, the evidence required for an H-1B tends to be less time consuming.
Other options to consider
Now that we've covered the two primary visa categories for startups, let's look at a few others.
TN visa for professionals from Canada and Mexico
This visa was created as part of the North American Free Trade Agreement (NAFTA) and provides work authorization for citizens of Canada and Mexico in certain roles. The TN can be a great fit for startup employees in certain roles and, in some situations, startup founders.
Canadian citizens can apply directly at the U.S. border or via mail. Mexican citizens can't apply directly at the border, but their employer can submit the TN by mail. For an extra fee, premium processing can be added to a TN submitted via mail. With premium processing, the petition is adjudicated in 15 days or less.
L-1 visa for an intracompany transferee
The L-1 visa enables international companies to transfer certain employees from an office abroad to an American office. To qualify, the employee must have worked for the company abroad for at least a year within the past three years in a qualifying role (manager or executive) or "specialized knowledge" capacity.
Whether you're looking to expand your international startup to the U.S. or transfer existing employees to an existing U.S. office, the L-1 visa is worth looking into.
E-2 visa for investors
The E-2 visa allows nationals of certain treaty countries to invest in a U.S. business and then work for that business. Seed investments can help a founder or other early employee get an E-2 visa.
Bonus: green card paths
Some of the visas above can be extended indefinitely while others have limited validity. Either way, visa renewals are still pricey and time-consuming.
Perhaps the next step for one of your employees is not a new visa but a green card. There are several employment-based petitions that lead to permanent residence. Once your employee becomes a permanent resident, they can live and work in the U.S. without renewal for the next ten years (in most situations).
Get legal advice
We've worked with hundreds of startups and their founders to move their teams across borders. We're partnered with some of the biggest names in the industry—Techstars, SOSV, Mass Challenge, and more. And we're a part of the Deel family. Our team is composed of immigration attorneys, legal experts, technologists, immigrants, and even founders. We understand startups and we know immigration. Before you try to figure out a visa for your next hire on your own, talk to us.