As India experiences a growing hub of startups, many entrepreneurs wish to explore means to lawfully enter U.S. markets to expand these startups.
Three leading visa options for this purpose are the new office L-1 visa, the O-1 visa, and the EB-1A visa.
While for some individuals there may be more than one viable option, it’s important to familiarize yourself with the similarities and differences between these visa categories to choose the best option.
In this article we will dive into each visa category in detail.
NEW OFFICE L-1 VISA
First, there is the L-1 visa — specifically, the new office -1 visa.The L-1 nonimmigrant visa classification is for intracompany transferees who have worked abroad continuously for one year within the past three years and will be employed in the U.S. by branch, parent, affiliate, or subsidiary of their current employer in a managerial, executive, or specialized knowledge role.
The L-1 visa being a non-immigrant visa essentially means that the visa is meant to secure temporary legal work authorization in the United States rather than permanent residency (i.e., getting a “green card”).
However, the L-1 visa is “dual intent,” which means that, unlike some other nonimmigrant visas, it is lawful to contemplate an immigration pathway when applying for the visa.
For intracompany transferees who wish to come to the U.S. in a managerial or executive capacity, the relevant visa classification is an L-1A; for intracompany transferees who wish to come to the U.S. in a specialized knowledge capacity, the relevant visa classification is an L-1B.
L-1A applicants are typically allowed to enter the U.S. to work for an initial period of three years, subject to two 2-year renewals for a total of 7 years. Comparatively, L-1B applicants are also allowed to enter the U.S. to work for an initial period of three years, but can only renew their visa for one 2-year renewal for a total of 5 years.
The new office L-1 visa matches the same renewal and total year duration as other L-1 visas, but a key difference is that the initial entry period for a new office L-1 is one year.
This also means that for Indian startups looking to establish their initial presence in the U.S., the new office visa L-1 is the pathway to go.
For startup personnel looking to secure a new office L1-A visa petition, the following pieces of evidence must be established:
- Adequate physical premises have been secured to house the new office;
- The L-1 beneficiary employee has worked continuously for one year within the three years prior to the petition filing in an executive or managerial capacity, and the proposed L-1 employment will involve executive or managerial authority over the new operations in the United States;
- The intended United States operation will support an executive or managerial position within one year of the L-1 petition's approval (which can be supported by the U.S. entity’s structure, its financial goals, and its available investment from the foreign entity).
- Adequate physical premises have been secured for the new office;
- The business entity in the United States is or will be a qualifying organization (i.e., branch, parent, affiliate, or subsidiary of the foreign entity);
- The U.S. petitioning employer has the financial capability to compensate the L-1 beneficiary employee and to begin business operations in the United States.
O-1A VISA
Next, there is the O-1A visa.The O-1A visa is designed for individuals and entrepreneurs who demonstrate extraordinary abilities in fields such as science, business, art, education, or athletics.
The O-1A visa, like the new office L-1 visa, is a nonimmigrant visa. Similarly, it also is “dual intent.”
O-1A applicants are typically allowed to enter the U.S. to work for an initial period of three years, subject to indefinite 1-year renewals.
However, the requirement for a sponsoring employer is slightly different.
Whereas the L-1 visa requires a sponsoring employer from the U.S. counterpart of the foreign office to petition on behalf of the beneficiary employee, the O-1 visa allows for a U.S.-based “agent” to do so (who must be your employer, a representative of the employer and beneficiary, or someone specifically authorized by the foreign employer).
Supporting documentation for an O-1A petition must demonstrate that the beneficiary has received a major internationally recognized award (such as the Nobel Prize) or meets equivalent evidence.
EB-1A VISA
Lastly, there is the EB-1A visa.The EB-1A visa is an employment-based immigrant visa available to non-U.S. citizens with extraordinary ability in the sciences, arts, education, business, or athletics.
Essentially, the EB-1A is the “green card version” of the O-1A visa leading to permanent residency within the U.S.
To demonstrate sustained national or international acclaim and recognition in your field, the applicant must provide evidence of either a major internationally-recognized award or meet at least three of ten criteria (or equivalent evidence if any criteria are not applicable) listed on this website.
PROS & CONS OF EACH VISA CATEGORY:
In conclusion, which of these three visa categories works best for startups depends on weighing the pros and cons of each and applying them to the facts of a particular situation.
New office L-1 visa:
Pros:- Beneficiary does not need to establish any sort of demonstrable excellence in their field in order to qualify;
- Dual intent;
- Can open a new office in the U.S. which is not currently operational;
- Easy transition to a green card (i.e., EB-1C) for new office L-1A category;
- Spouse and unmarried children under 21 can work;
- No numeric caps in available visas.
- Initial entry period of only one year;
- Limited maximum duration (7 years for L-1a visa and 5 years for L-1B visa);
- Requires to have worked for a foreign employer for one continuous year within the last 3 years (even if this is one’s own startup);
- Generally must have substantial revenue/capital to fund new office, employees, business expansion, etc.;
- Green Card pathway not possible for new office L-1B category (EB-1C visa requires that the beneficiary’s employment for the foreign company must have been in a managerial or executive capacity).
O-1 visa:
Pros :
- No need for a physical office presence either abroad or in the U.S.;
- Initial stay period of three years with indefinite extensions;
- For startups, no need to necessarily be generating revenue or have significant investment before the founder can qualify for an O-1A (so long as three of the eight above-mentioned criteria are satisfied).
- No numeric caps in available visas.
- Must meet specific criteria of excellence for extensions which must be maintained annually (since extensions are in 1-year increments);
- Pathway to green card (i.e., EB-1 visa) comparatively more difficult to substantiate since — despite similar requirements for the O-1A and EB-1 — the standard of review for the EB-1A is subject to higher scrutiny (e.g., USCIS may consider a certain VC startup investment sufficient for “award” O-1A purposes but not for EB-1A purposes; similarly, they may be satisfied with media coverage/promise for the O-1A but want to see documented achievements for the EB-1A).
- Spouse and unmarried children under 21 cannot work.
EB-1A visa
Pros- Leads to U.S. permanent residency/”green card” (which itself generally leads to citizenship within 5 years);
- You do not lose your visa if you have your employment terminated;
- No numeric caps in available visas.
- Spouse and unmarried children under 21 can work (since they get their own green cards).
- As noted above, the standard of scrutiny for an EB-1A is subject to higher review than an O-1A nonimmigrant visa (for this reason, it is recommended to generally opt for an O-1A visa first — especially since eligible criteria can further develop while in the U.S. on O-1A status).
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