The Student Visa, OPT, and H1B Visa EXPLAINED | U.S. Immigration Lawyer Elizabeth Jamae

Okay. So we're going to start with the student visa, the F-1 visa, and Optional Practical Training. This is something that's probably pretty typical for some— for most of you guys. You know, I don't know the demographics here, but it might be that you're going to go into a program after this, or you're coming from a program. Maybe you're on F-1. I wanted to bring this up because it's— there's a really big distinction between being on an F-1 and being able to start a company and being on OPT and starting a company. How many of you guys have heard of OPT? Okay, good. And are you guys currently on OPT, anybody?

I am.

Okay. So the cool thing about OPT is that you can actually be self-employed and start a company. It's a great— path to another visa. So really, it's something you probably should consider taking advantage of. When you're an F-1 student, you can work 20 hours a week, which is— that's pretty decent. You can register a company, which is important. You can register a company. You cannot work for that company. You can't even actually— technically, you can't be employed. Employed on a volunteer basis. So you can't even volunteer for your own company. So just don't do it. Just get on OPT and start your company and work that way. But just don't do— it's just advisable not to start a company on an F-1. That's my opinion. So we covered that. So I have a question. Does anybody have any questions about the OPT versus F-1? Because it's a little bit confusing, but I just wanted to make a point that you should really try to get on OPT before graduating. Yeah, go ahead.

What makes the F-1 allow you to register a company, even put money in that company, but not put your time in that company?

It's a control issue. Yeah, it all— most of these rules revolve around how much control you have. And when we get to talking When we talk about H-1Bs, it's also, you know, you can self-sponsor. You can basically be an employee of your own company and sponsor an H-1B for yourself, but you have to have a board of directors that's controlling hiring and firing. So, it all has to do with control. One quick comment.

I think one of the most relevant things that might be useful for all of us Well, for 60% of us, since we're international, is how we can— we're going to be able to work here, get a visa to work here and live here.

Yeah.

So probably that's the most relevant thing for us to hear.

And definitely we're going— so what I thought we would do is kind of do a quick overview of the 5 types of visas that would be available to you and then talk about scenarios. For example, like we just said, you finished an accelerator. Or I think I was just talking to somebody else. You finished an accelerator and then— so now I want to start a company. How can I stay in the U.S.? So we're going to get to that in just a second.

Yeah. Yeah, I just want to make a comment and you can confirm what I'm saying. So to get the OPT, you first, for example, need to get a bachelor's degree in the United States and then you can get an OPT. But in order to get another OPT, you would have to do like a master's program And then you're allowed to get another time, like another OPT.

Extensions, right. You can.

Because like, not— well, I mean, personally, I already got the OPT for bachelor's, and if I want another one, I need to do a master's.

Right. How much did you— how much time did you spend on your OPT?

A year.

OK. So let's just talk a little bit about the— I think a slide got out of order. OK. So that's a little bit about the F-1 and OPT because it's a really good visa to be on if you're just exploring your opportunities. But say you want to start a company. We're going to talk a little bit about the different options for visas that you have available. And then we'll get to your point where we're kind of going through some scenarios. But I think it's good that you just have a general overview. I tried to keep it a little bit shorter because you can find a lot of this stuff online. So I just— I'm going to— slow me down if I'm talking too fast, but I just want to hit the high points. So with the H-1B, like I said, it's extremely costly. You can see the filing fees and all the additional fees that you have to pay. These are not refundable if your case is not accepted. If it's not picked up in the lottery, yes, you get your money back, but if it's picked up in the lottery and they just decide ultimately to deny it, then no, you don't get the money back. Like I said, there's a 33% chance as of this last year for getting accepted. And another problem with an H-1B is that you have to file in April, but you cannot start work until October 1st. This is a huge problem. It's not very practical for most people. So again, it's not a visa that I like. And processing times. You actually can, if you pay the premium processing, which is right here, you can actually find out your response within 2 weeks. So that's great. But again, you can't start working until October 1st. And for those few of you that are thinking— I had a case recently where they wanted to set up a not-for-profit company. and try to beat the cap, because there's a cap for the regular H-1Bs. Nonprofits, certain ones like universities, research facilities, don't have to go up against the cap. But it's extremely challenging. So I would just advise not to do it. It's a road you just really don't want to go down. So, if you want to use the H-1B, you definitely have to establish a company, which means, you know, you incorporate, get a tax ID number for the company. And you can own the company, but you need an independent board of directors. So, this is very key. If you do want to go down this route and you're working with a corporate attorney, you always want to let them know, hey, I need a board of directors that's independent. I'm not going to sit on it. It's something that foreign nationals really need to consider that a lot of times you don't. So, definitely consider that. And what evidence is required? You definitely have to show ability to pay. So, that's kind of tough if you're a startup and you only have, say, $100,000, which is That's actually a lot of money for an early-stage startup. Traditionally, that's not enough to show ability to pay an engineer, because engineering salaries are extremely high. And I'll show you how high in just a second.

How much?

So it's a little bit challenging. But I will tell you that we have had success with as low of an amount in the bank account as about $150,000. $300,000. That's a big difference. But we've had some success with that. So, again, this is why I think the H-1B is not so viable for startups. You have to have a really, really detailed business plan. And you really need to show 5 years of financial projections. I know that sounds crazy. 3 years is typical. But in immigration, you need to always be prepared to show 5 years of Financial projections. It's always good to have other employees. And you definitely have to have a lease, like a physical office space, not necessarily a coworking space. We have had some success recently with using coworking spaces. But it's a stretch for H-1Bs. And you have to prove through your business plan that it's a real business. And if you don't have a lot of traction yet, and you— don't have any other employees but your founders, it's a bit of a challenge. So, this is, again, one of the reasons why I don't really think an H-1B is good for startups. That being said, we definitely have had success with them. If it's your only option, we can get creative and work through a plan for you. But it's, like I said, it's very costly. The other thing I wanted to bring up real quick that I don't think a lot of people talk about is with H-1Bs, we have to determine a prevailing wage. Have you guys heard of a prevailing wage before?

No.

Okay. So with an H-1B visa, you have to actually work with the Department of Labor to determine what you're going to pay yourself. Right? So say you're a CEO. Okay. Say you're a founder and you're a CEO.

Yeah.

If you're bootstrapping your startup, you're not going to really pay yourself a salary. But if you're trying to shoot for an H-1B, you actually have to listen to what the government is telling you is your appropriate salary. So we have to go and do some research. So we go to this data center. And it's pulled in a ton of information over 2014 and 2015. This is what the page looks like. And my question is, why is— what is it and why should I be concerned about it as a founder? This is why. So I went and pulled a couple of examples. So say you hired an attorney and you wanted to file an H-1B. They're going to say, OK, well, I need to figure out what you as the CEO is going to make if you're going to base yourself in San Francisco or San Mateo, Redwood City. Because they break these up into metropolitan areas.

Okay.

Say you— so this is what I would use for a CEO. These wage levels over here— and this is really technical, but I think it's something that you should understand because it really goes— it really helps you understand why the H-1B is not a very good visa for startups. These wage levels, they're Determinant upon— sorry, they're determined by your experience. And you guys would probably be in a level 2 or level 3, depending on if you have a bachelor's or a master's. And look at those numbers, $109,000 and $150,000 for wage 3. That means that in order to get an H-1B, you'd have to pay yourself $150,000. And I don't know about you guys, but I don't know that an investor would be happy with that number. So that's not practical. If you look down, I did Oakland for you. So the numbers go down about $20,000. But that's still $132,000 and $99,000. And you'll be pushing it to get this wage level too if you're a CEO. It just doesn't make sense. Then I also pulled one more for Austin, Texas because that seems— I do a lot of presentations overseas and I've noticed a trend of a lot of people moving to Austin.

Yeah.

And you go down another $10K in price. So this also goes to location. When you decide where you want to base your company, you should consider what the salaries are because it will help you later on. And this goes to anybody that— this goes to anyone across the board, not just foreign nationals. Because as a founder, you're going to deal with U.S. immigration issues. And so, it's really great to be thinking ahead and say, okay, well, if I'm basing myself in San Francisco, which I know a lot of you guys want to do, these are the salaries I'm going to come up against if I want to hire some H-1B applicants. Okay? Oh, and I pulled this for Austin. This is for the Austin area for an engineer, so a developer. And you can see it's about $100,000 and about $80,000. And then for San Francisco, I pulled it for a developer. $120,000 is probably what you're looking at having to pay a software engineer on an H-1B. So these numbers are really high. And this is what the form looks like when you have to fill it out. I just put that on there because it's nice to see. It's good to know what your attorney is talking about when they, they charge you that money.