Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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My co-founder and I were both laid off from Big Tech last week, and it’s the kick we needed to go all-in on our startup.
We’re both first-time founders, but my co-founder needs immigration sponsorship to maintain status with our startup.
Do we look at an O-1A in the 60-day grace period? Thanks!
— Newbie in Newark
It’s been a crazy couple of weeks and we have more Big Tech (and startup) layoffs coming. We have lots of educational resources for what to do if you were laid off and you need non-immigrant visa sponsorship or a green card. As explained in last week’s article, there are ways for laid-off immigrants to seek additional time in the U.S. to make their next move.
Apparently, almost 25% of laid-off tech workers start their own companies, but I am sure the number has historically been lower for international folks because the ball and chain of the U.S. immigration system can feel weighty.
However, there are a lot of ways that you and your co-founder can take to successfully navigate the layoff, the grace period and sponsorship at the new startup. Here’s how:
Deadlines and pathways
The 60-day grace period is discretionary. We advise conservatively that the grace period begins from the date of termination, although some laid-off individuals will continue to get paychecks for many months. Many of the layoffs are public and WARN Act notices are issued, so the Department of Homeland Security is on notice.
That said, if you need more time to set things up properly for your new startup to exist and sponsor your co-founder’s immigration, your co-founder can apply for a change of status to B visitor. As a B-1 business visitor, your co-founder can engage in certain activities legally, such as business formation and fundraising meetings, and request an additional six months of time beyond the 60-day grace period. This application process can run in parallel with immigration sponsorship by a new company.
Sometimes, you can qualify to sponsor a co-founder for an H-1B transfer so they can work at your startup if you meet the requirements. Additionally, many individuals will use the runway provided by the six months of B-1 status to build their portfolio of accomplishments to qualify for an O-1A visa for extraordinary ability. The O-1 status is available to many professionals, including founders who can demonstrate they are at the top of their field.
An O-1A is particularly advantageous for startup founders, because it can be sponsored by an agent for an itinerary of services, including advising other startups for equity, being a venture scout for a VC firm and getting paid as a contractor for speaking engagements in your field. Founders born in India or China are subject to the green card backlogs for individuals, and the O-1A can be a great stepping stone to qualify for and self-sponsor the faster EB-1A green card pathway.
For either an H-1B, TN, E-3 change of employer or a change of status to O-1A, you should be aware of the importance of setting up your company to successfully sponsor your co-founder and other hires for visas and green cards while also attracting funding from investors.