There are many great resources online covering immigration pathways for entrepreneurs, including from our very own USCIS. I thought it would be useful to provide some additional context unique to founders looking into the YC program.
First, it's important to note that there are 2 primary immigration terms which cover different pathways available to founders: Nonimmigrant visas, which are for "temporary" work authorization and which include, for example, H-1B, O-1, L-1, F-1, TN, etc. There is also the Immigrant visa, or green card pathway, which includes family-based (e.g. marriage to a US Citizen) and employment-based immigration categories (EB-1, EB-2, EB-3). While it is technically possible to pursue only the immigrant visa (e.g. EB-1) pathway, it is not usually the most efficient immigration option and founders will more commonly pursue a nonimmigrant work visa to begin working in the US in the short term, followed by an immigrant visa pathway with the goal of becoming a US permanent resident.
Nonimmigrant Visa Options
The most common nonimmigrant visas for founders are the following:
O-1A: The most common visa for a startup founder is the O-1. The beneficiary/applicant must meet at least 3 of the 10 O-1A criteria. Individual who are accepted in the YC program or a different accelerator will typically attempt to satisfy the following criteria:
F-1 OPT/STEM OPT: A student in F-1 status may start a business. Please be aware that there are special requirements associated with the STEM OPT extension, including that the entity be an employer in good standing with E-Verify.
H-1B: If you are already present in the US in H-1B status, it is possible to have your startup file an H-1B on your behalf. It is ok to have an ownership interest in the petitioning entity, but USCIS does need the employer to establish that a valid employer-employee relationship exists, typically by showing that someone has the ability to fire you and otherwise control your work (this is less of a concern for O-1 visas). However, while the H-1B can be a cheaper option, the H-1B provides you with a finite amount of work authorization and you should consider if you have enough time less in the 6-year H-1B limit and if changing to O-1 would be beneficial in that you will be able to save some of your H-1B time should your startup plans not work out.
L-1: If you have started your business outside of the US, you can pursue an L-1 "new office" visa to open an office in the US.
E-2: The E-2 investor visa can be a good options for foreign nationals from treaty countries, but the investor must invest a substantial amount of capital and treaty country nationals must own at least 50% of the business, among other requirements.
Immigrant Visa Options
EB-1A, Employment-Based First Preference Category: The EB-1A is for individuals with "extraordinary abilities," and the criteria that must be met are the same as for the O-1A visa. However, the burden of proof is significantly higher and securing an O-1A visa is absolutely no indication of your eligibility for EB-1A. As an example, while USCIS may consider a $250K VC investment an "award" for O-1A purposes, at the EB-1A stage they typically want to see much higher numbers (think multiple millions). At the EB-1A stage, USCIS also wants to see that the product/company has documented achievements, through additional funding rounds, media coverage, and/or some traction with customers.
EB-2, Employment-Based Second Preference Category with National Interest Waiver: These are for individuals with at least a master's degree or exceptional ability (somewhat similar criteria to O-1A), and who can demonstrate that the proposed endeavor has substantial merit and national importance. USCIS has specifically carved out eligibility criteria for entrepreneurs, making this a valid immigrant visa option for many founders, and even more so for individuals whose company/background is STEM-related.
Family-Based Immigration: Are you engaged/married to a US Citizen or Permanent Resident? Congratulations! If you would like to pursue a green card/permanent residency, you will likely do so through the family-based immigration process. In most cases, this will be the most beneficial option for you unless you have a slam dunk EB-1A case.
Frequently Asked Questions In No Particular Order
Do I need to be accepted in YC to qualify for an O-1? No. Acceptance into YC or a related accelerator/incubator is great evidence for the membership criteria, but it is not absolutely required so long as you meet at least 3 other criteria.
I heard that I must own less than 50% of my company to qualify for an O-1, is that true? No that's not absolutely true. I've seen approvals for sole founders who own 100% of their company.
Can I use a B1/B2 to run my company in the US? Many foreign national founders will come to the US in B1/B2 status to complete the YC program, fundraise, attend industry events, etc. However, while in B1/B2 status you are not authorized to be doing productive work for your company. If you are spending months in the US, travelling in-and-out, etc. CBP may give you a hard time and if your intent is to live, work, and run your company in the US you should be looking at nonimmigrant visa options.
Can I change status to O-1 from within the US, or can I apply for an O-1 from outside of the US? If you are present in the US and maintaining a different status (e.g. F-1, H-1B) you can apply to change your status to O-1 from within the US. You may also file an O-1 petition through USCIS while you are outside of the US.
Why do I need an O-1/H-1B/OPT EAD, can't I just do EB-1/EB-2? The EB-1/EB-2 does not by itself provide you with work authorization as it’s only a basis for being eligible to file a green card application. Even filing a green card application itself does not provide you with work authorization until the application is approved. You do apply for an EAD together with the green card, but that can take 6+ months to be issued, so if you are intending to work in the US you will likely first pursue a nonimmigrant visa option.
If I secure an EB-1/EB-2 approval, when will I be eligible to apply for a green card? In general, you may not file your green card application until a visa is available in your preference category. The Department of State issues a monthly “visa bulletin,” which determines your eligibility to file the application. You may check the current month’s visa bulletin here.
What types of questions should I ask an immigration attorney about their service? Here are some good questions to ask a potential service provider: 1) How much does your service cost, and are there additional fees if an RFE is issue? 2) What is the typically preparation time for the petition, assuming that I am able to gather all of my documents, reference letters, etc. within the next 30 days? 3) Will you help draft the reference letters I need? 4) Will I be working directly with an attorney or does a paralegal drive the process? 5) What are my options if the petition is denied (i.e. will you charge an additional legal fee to refile)?
That's a pretty good overview of options for founders and FAQs. Please feel free to flag anything you think could be useful to add to the FAQ and I can edit for other's future reference.
First, it's important to note that there are 2 primary immigration terms which cover different pathways available to founders: Nonimmigrant visas, which are for "temporary" work authorization and which include, for example, H-1B, O-1, L-1, F-1, TN, etc. There is also the Immigrant visa, or green card pathway, which includes family-based (e.g. marriage to a US Citizen) and employment-based immigration categories (EB-1, EB-2, EB-3). While it is technically possible to pursue only the immigrant visa (e.g. EB-1) pathway, it is not usually the most efficient immigration option and founders will more commonly pursue a nonimmigrant work visa to begin working in the US in the short term, followed by an immigrant visa pathway with the goal of becoming a US permanent resident.
Nonimmigrant Visa Options
The most common nonimmigrant visas for founders are the following:
O-1A: The most common visa for a startup founder is the O-1. The beneficiary/applicant must meet at least 3 of the 10 O-1A criteria. Individual who are accepted in the YC program or a different accelerator will typically attempt to satisfy the following criteria:
- "Awards" of funding;
- Membership in associations (YC);
- Critical or essential role with organizations of distinguished reputation (startup entity and/or prior employers);
- Judge of the work of others (e.g. Hackathon or peer-review);
- Original contributions of major significance (e.g. tech the startup has developed/is developing);
- + any other applicable criteria (e.g. scholarly publications).
F-1 OPT/STEM OPT: A student in F-1 status may start a business. Please be aware that there are special requirements associated with the STEM OPT extension, including that the entity be an employer in good standing with E-Verify.
H-1B: If you are already present in the US in H-1B status, it is possible to have your startup file an H-1B on your behalf. It is ok to have an ownership interest in the petitioning entity, but USCIS does need the employer to establish that a valid employer-employee relationship exists, typically by showing that someone has the ability to fire you and otherwise control your work (this is less of a concern for O-1 visas). However, while the H-1B can be a cheaper option, the H-1B provides you with a finite amount of work authorization and you should consider if you have enough time less in the 6-year H-1B limit and if changing to O-1 would be beneficial in that you will be able to save some of your H-1B time should your startup plans not work out.
L-1: If you have started your business outside of the US, you can pursue an L-1 "new office" visa to open an office in the US.
E-2: The E-2 investor visa can be a good options for foreign nationals from treaty countries, but the investor must invest a substantial amount of capital and treaty country nationals must own at least 50% of the business, among other requirements.
Immigrant Visa Options
EB-1A, Employment-Based First Preference Category: The EB-1A is for individuals with "extraordinary abilities," and the criteria that must be met are the same as for the O-1A visa. However, the burden of proof is significantly higher and securing an O-1A visa is absolutely no indication of your eligibility for EB-1A. As an example, while USCIS may consider a $250K VC investment an "award" for O-1A purposes, at the EB-1A stage they typically want to see much higher numbers (think multiple millions). At the EB-1A stage, USCIS also wants to see that the product/company has documented achievements, through additional funding rounds, media coverage, and/or some traction with customers.
EB-2, Employment-Based Second Preference Category with National Interest Waiver: These are for individuals with at least a master's degree or exceptional ability (somewhat similar criteria to O-1A), and who can demonstrate that the proposed endeavor has substantial merit and national importance. USCIS has specifically carved out eligibility criteria for entrepreneurs, making this a valid immigrant visa option for many founders, and even more so for individuals whose company/background is STEM-related.
Family-Based Immigration: Are you engaged/married to a US Citizen or Permanent Resident? Congratulations! If you would like to pursue a green card/permanent residency, you will likely do so through the family-based immigration process. In most cases, this will be the most beneficial option for you unless you have a slam dunk EB-1A case.
Frequently Asked Questions In No Particular Order
Do I need to be accepted in YC to qualify for an O-1? No. Acceptance into YC or a related accelerator/incubator is great evidence for the membership criteria, but it is not absolutely required so long as you meet at least 3 other criteria.
I heard that I must own less than 50% of my company to qualify for an O-1, is that true? No that's not absolutely true. I've seen approvals for sole founders who own 100% of their company.
Can I use a B1/B2 to run my company in the US? Many foreign national founders will come to the US in B1/B2 status to complete the YC program, fundraise, attend industry events, etc. However, while in B1/B2 status you are not authorized to be doing productive work for your company. If you are spending months in the US, travelling in-and-out, etc. CBP may give you a hard time and if your intent is to live, work, and run your company in the US you should be looking at nonimmigrant visa options.
Can I change status to O-1 from within the US, or can I apply for an O-1 from outside of the US? If you are present in the US and maintaining a different status (e.g. F-1, H-1B) you can apply to change your status to O-1 from within the US. You may also file an O-1 petition through USCIS while you are outside of the US.
Why do I need an O-1/H-1B/OPT EAD, can't I just do EB-1/EB-2? The EB-1/EB-2 does not by itself provide you with work authorization as it’s only a basis for being eligible to file a green card application. Even filing a green card application itself does not provide you with work authorization until the application is approved. You do apply for an EAD together with the green card, but that can take 6+ months to be issued, so if you are intending to work in the US you will likely first pursue a nonimmigrant visa option.
If I secure an EB-1/EB-2 approval, when will I be eligible to apply for a green card? In general, you may not file your green card application until a visa is available in your preference category. The Department of State issues a monthly “visa bulletin,” which determines your eligibility to file the application. You may check the current month’s visa bulletin here.
What types of questions should I ask an immigration attorney about their service? Here are some good questions to ask a potential service provider: 1) How much does your service cost, and are there additional fees if an RFE is issue? 2) What is the typically preparation time for the petition, assuming that I am able to gather all of my documents, reference letters, etc. within the next 30 days? 3) Will you help draft the reference letters I need? 4) Will I be working directly with an attorney or does a paralegal drive the process? 5) What are my options if the petition is denied (i.e. will you charge an additional legal fee to refile)?
That's a pretty good overview of options for founders and FAQs. Please feel free to flag anything you think could be useful to add to the FAQ and I can edit for other's future reference.