Scenarios Regarding Visa Options for Founder Abroad | U.S. Immigration Lawyer Elizabeth Jamae

So scenario 1. You're in the U.S. on ESTA, which is the holiday visa. Just finished an accelerator program. I'm ready to start my company here in the U.S. Now what? So can you incorporate on ESTA? Who thinks they can? OK. Can you open up a bank account while you're on ESTA? Yes.

Okay.

You're right. I mean, you can. You can come here on a holiday visa. You can incorporate. You can open up your bank account. But you can't operate or earn an income or anything on that visa. And in fact, it's very— I would advise that if you do decide to come in and do that, you should be on a B-1/B-2. It'll protect you in the long run. Because if— It's a very fine line, and if you're running a— if you incorporate a company, you very easily can be considered running the company, and that's really tricky. So, what I would suggest is if you're here on ESTA, go ahead and incorporate. Go ahead and get a bank account, but then go home, get a B-1/B-2, come back in, and start building your brand and your— you can't work on a B-1/B-2, but you can do a lot more than you can on ESTA. Because ESTA is a completely touristy— tourist visa. It's a holiday visa. So— but a B-1/B-2, you can actually meet with investors, hire employees. You can do those kind of things. Yes? I have a question.

So does this program, you know, is it an accelerator program in these terms? And with I-1, B-1, B-2, one of the person who I'm starting the company with is an American resident. So will that be a problem for me to incorporate, or is it like totally okay?

You should be okay to incorporate. Yeah, if you're on S-10.

Can I set up the company over the internet, or do I have to physically be here?

You can set up a company on the internet. That's fine. Over the internet, yeah. You don't have to physically be here. The problem comes in with trying to get an EIN, a tax ID number. If you don't have a Social Security card, you have to physically mail stuff in, and it does take a long time for that process. So, some of the online incorporation tools allow you to register the EIN while you're doing the incorporation, or to apply for it. So, you could probably do that. But using the online programs available to you to incorporate might not be your best solution if you're going to seek investment later on. You'd probably be better off getting a corporate attorney at a reasonable cost to incorporate you. Is possible to run online business in U.S.

while being outside of U.S.?

Oh, run an online business that is incorporated in U.S.

but actually for some period I live in Europe, for example.

That's a tricky question. You want to talk to me afterwards? That would be. But you cannot earn money? You cannot earn money on a B-1/B-2. It's very clear. And so, why is this important for you? It's important because if you want to apply for a visa, and you've been here for 6 months on a B-1/B-2, and building your company, when you go to apply for that visa, the government's going to say, well, you've been in the U.S. for 6 How have you been supporting yourself? Because you've lived in the US now half the time. And B, if you're saying that you're starting this company, the logical conclusion is that you were working for the company while you were here on B-1/B-2. So, you have to be— does that make sense? You have to be very careful to kind of look for— in immigration, you always have to look forward and think, what are my actions today going to mean for me tomorrow? Does does that help?

In that case, what visa should we be applying for?

Well, what I guess I don't understand what you.

Say we are in B one B two, right? And we plan to incorporate the company. So what should be? So let's say I'm here for the last four months. What should be my what should be my application? Which kind of visa should they get?

Sure. So that all depends on how much cash you have to work with, who your co-founders are, what country you're from. It's very individualistic. And most immigration attorneys that work with startups should give you a free consult. Because I guess in our firm, how we work is I I don't want you to spend your time and money going down a path that's not going to be successful for you. So we always offer consults to kind of work out the little kinks and know exactly which visa to apply for before you put your time and money into it. But it's very individualistic.

Yeah? Could you talk a little bit about the entrepreneur visa that I think is in the Congress right now?

Yeah. There's not much to say about that just because it's just not going to happen right now. I mean, in the next couple of years. The UK actually just passed their Tech City Visa that would be similar to that entrepreneurial visa that's been talked about. The UK— you should check, just for your knowledge, you should check that out. They just passed it. It's going to go into effect in a couple of months. But it's called Tech City. Tech City Visa, I think, is the slang for it. I don't know the exact— but that visa is a— that concept is a great idea, but it's just not going to pass for a very long time. I'm guessing at least 2 years. And actually, if you look at it, the investment's $500,000, I think. And that's way over what most people can put in.

Yeah.

So, it's just not a viable— I don't think it's a viable option.

Yeah, because I've read that they want to kind of do the entrepreneur visa as kind of like a talent visa.

It's just locked up in Congress. You're right. But there's not going to be any action on it for a long time. There are some creative companies out there, like Unshackled, that have— you should Google them. kind of legally working within the system to help— they're working with universities to help F-1s and people already on H-1Bs to transition over just running their own company on their own H-1. That's going to be more successful than waiting for the Congress to move. So, who had a question? Uh-huh.

This might be silly, but is there any kind of like backdoor way Like, for instance, getting a visa in the UK or in Canada or some country that's friends with the US, allies with the US, and then trying to get a US visa?

No. No, it's not a silly question. I'm sure I've looked into that at some point. But no, there's not, unfortunately. But the UK is pretty friendly on entrepreneurs. Just FYI. Do you guys have a question? Anybody else? Uh-huh. Yeah.

So what's the definition of work? Say you work for your own company. What's the definition of work?

Any kind of work that someone else would get paid for. Like anybody else but you, because you're volunteering your time because it's your company. But think about it. Anything that— so it's basically anything. It's a pretty—

Is it hard to prove? How would you defend that if someone said you were working?

If someone said you were working?

If immigration said you were working for your home country, how would you defend that?

It's going to be really hard. To be honest with you, most of those cases are pretty hard to disprove unless you have a lot of funds in your home country that you can say that you're supporting yourself on. It's just best to— the consequences are long-term in immigration if you don't resolve your issues initially. So it's just— it may seem tough at the time, but it's best just to tackle it up front and then have an easier ride in your future. Does that make sense?

Yeah.

Can I—

huh? What's a reasonable time that you spend on your B-1/B-2?

What I like to try to tell my clients is that if you spend more than 50%— so on a B-1/B-2, you get 6 months. And then what a lot of people are doing is they go home and they come right back and spend another 6 months. That's a huge no-no. What happens is the immigration officer, when you come in from the airport, is going to say, well— because now everything's electronic, they can see your travel history— they're going to say, you have to have been working here because you've You've spent 270 days in the U.S. And you don't have the luxury to say, oh, but I'm sorry, I have $100K back home. You could say that to them, but they're just going to say, nope, sorry. They're going to write in your passport and they're going to send you back on the next plane. They're not going to let you in. That's a scenario that I can guarantee you will happen if you spend that much time in the U.S. So what is your pattern?

Right.

they're looking at. And I guess your best bet is to say don't spend more than 50% of your time here.

So like 3 months and then going back? What would be your best strategy for like in the meantime when we're acquiring another visa? For example, I have a tourist visa that I can spend 6 months a year, and that's probably Right.

Yeah, I would not suggest staying 6 months, being out for 2 or 3 weeks, then coming back and staying another 3 or 4 months, then being out for 2— I mean, it's the quick trips in and out. That's a big problem.

So what's your recommendation?

My recommendation is to You should probably get an appropriate visa after your first trip here on your B-1/B-2. So try your best to— if you stay here on a B-1/B-2 and you're exploring your options during that time— and that's one reason why these talks are really good, because it gets you thinking about, okay, while I'm here on this visa, I need— on this B-1/B-2, I need to think about my visa strategy. So while you're here this time, you need to think, okay, Am I going to get an investment? Am I going to attach myself to a company somehow? Do I have a company in my home country that I can have acquired by a U.S. company? Acquire. I mean, there's all sorts of options, but you have to be talking about it.

With the other visas, if we get an investment and we get the visa and that company doesn't work, what happens to the visa?

Well, if your visa is tied to the company, then your visa does— evaporate and you have to find another solution. So you always have to be cognizant of that. I think you were first. Yeah, I'd like to see some of the other scenarios. I also want to find out, like, the E-2 treaty visa, how long does the process actually take typically? It's different with every consulate. The UK is about 6 weeks. Tokyo is the longest at 8 weeks. France is probably the shortest at about 4 weeks. Well, I take that back. Santiago takes— you just walk up with your application the day of the interview. So it's 5 or 6 days to your interview. Yeah, it's really fast. It's really fast. Germany is also fast because they're very organized. That's a nice way to put it. The Frankfurt embassy is really organized. So you process pretty quick. It takes about 2 to 3 weeks to pull your application together if you have all the documents ready. And then you submit it to the consulate, or sometimes you walk up to it. And so the process is about, I'd say, 2 to 3 months. Yes?

So if we are in the B-1/B-2 visa and we have 6 months and we've been here for 3 months and we haven't got the appropriate visa yet, what do you suggest? Just go back? Go back home and marry someone.

No, I'm not suggesting that, marrying someone. Well, I mean, you do have 6 months. I mean, you can explore your options and see what you have. I'm just saying that don't expect to not have issues if you stay 6 months, go home, and come right back. You will have issues then. I mean, it's very, very— it's drastically different over the different ports of entry. So San Francisco tends to be pretty strict because we're a hub of the startup world.

Just to comment on that, I think you're less likely to get sent back if you don't come directly from your home country. But also, this This might sound terrible, but Sacramento takes flights only from Mexico. It's the only other country you can fly into Sacramento from. I just wonder if you flew to Mexico and then flew to Sacramento, I think it'd be hard for them to send you back from there.

Oh, you'd be surprised. You'd be surprised. So the bottom line to this, the whole lesson that you should probably take from this is that if you've thought of it, somebody's tried it, and somebody One of your friends might have gotten in. But trust me, that day that they send you away and they write in your passport and now you have to go and pay an attorney $6,000 to get a waiver just to come back in on a visitor's visa is the day you're going to regret trying to skirt the system. And that's not the attorney in me talking. That's just the— if you're trying to— a perfect example is you have investors that are ready to invest in your company. And the visa situation is the last thing you thought of. And you flew out to your home country to visit your parents for a few weeks. And you're flying back in. You're going to sign those investment documents. And they turn you away at the border. And now your investors are scared. Your company is in jeopardy. So that's the one thing I want you to take from that little story is that— or the one thing I want you to take is that it's just not worth trying to come up with creative ideas. On that end, on the B-1/B-2 end or the ESTA issue, it's not worth risking your company. Just take the extra step. Find an attorney that's creative and will work with you within the system to get you the proper visa. I know it's a minefield and it's extremely frustrating, but there are creative ways to To find a solution for you that aren't just trying to squeeze in. Because it could potentially ruin your company. That's my take on it.

It's very frustrating.

It's very frustrating.

I have friends that are models, and they get visas really fast. And then other people are trying to build companies, and therefore build economy and jobs and everything.

It's completely backwards. They let the wrong people in. I mean, they let— yeah, they keep the right people out and let the wrong people in. It's very frustrating. I deal with it like every single second of my life is being frustrated. Yes?

So are you saying once we have investment, we really should start applying for work visa right away?

Right. So if you have the potential for investment, that's when you need to talk to an immigration attorney to say, okay, I have this money that's coming in. This is where I'm from. This is my background. Check out your CV. Check out what you've been doing in your home country. Who your investors are. Can they write these awesome recommendation letters? I mean, there's all sorts of things you need to be looking at in conjunction with when you're— as you're getting your investment.

Does that—

Answer your question? Okay. I think we kind of covered this. I have a company in my home country and I'm here on a B-1/B-2 pitching to investors. I found some. Now what? This kind of goes to your question. One of the things I want to touch on just briefly because I know we don't have a lot of time, but there is something kind of creative that we've been doing lately and I really like it. And that's if you do have a company in your home, you know, where you're from, and you don't have a lot of options, what we've been doing in the L-1 case— I don't have it on here— but is you can find— well, you can start a company here in the U.S., and that company can actually acquire your company in your home country. country, and then you can come over on an L-1 as a specialized knowledge employee or an executive. So I didn't really do a good job of explaining that. But it's been a very successful solution. Let me try to explain a little bit better. Say you are a developer in Greece. I'll use Greece again as an example. And you built this company. And you're doing something kind of unique. And you come over here. And you don't have a lot of luck. Well, this doesn't go to— I'm sorry. I'm going to backtrack. Sorry. I've been talking. Huh? You guys are so supportive. I was going down a rabbit hole. Let's make an example. Like, we came here with a business idea that That already started in our home country? Yes.

And so, you want to come here with that company established in your home country?

That's right. So, say you have trouble getting investors here, but you have a— there's another American company that may be similar to what you're doing, then they can acquihire you and bring you over here on an L-1 visa, and then you can take it from there. But it's been a— it's a pretty creative way to get a visa if you just don't have any other options. But so, a couple of things. If you're here on a B-1/B-2 and you have investors, so one of the things you can start doing is looking at that L-1 visa we talked about. So setting up a new office qualifies for that. And if you have some money, you can do that. The E-2, E-1— E-1 is a trader, but we talked about the E-2— and that O-1 visa. So those are the type of visas that you probably should be considering. Not the H, but an L or E or an O. I want to work in the U.S. before I start my own company. How do I get here? Well, this is what we talked about. One of the things was get acquired. We just talked about that. The O-1, which is the extraordinary Ability Visa. That's one way that people are getting over.

And then—

oh, and then— I don't know. We're going to skip that one. That shouldn't be there. Questions? Do you have any questions? I kind of rushed through everything because it's only an hour.

Thank you.