Dear Sophie: Can a startup sponsor a graduating co-founder?

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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On Tuesday, April 26 at 2:30pm PT/5:30 pm ET, Sophie Alcorn will answer questions about immigration law for startups during a Twitter Space hosted by Senior Editor Walter Thompson.

The conversation is open to everyone, so please submit your questions on Twitter and click here to get a reminder when the chat begins.

Dear Sophie,

What are the visa options for an advanced-degree graduate from a U.S. university who wants to co-found a startup upon graduation?

Can the newly minted company or other co-founders sponsor the recent grad?

— Forward-Looking Founder

Dear Forward-Looking,

A founder completing an advanced degree has several options! Let me take your second question first: Yes, it’s possible for a newly minted company that exists in good faith to sponsor a recent grad. For most student founders, the straight line is from OPT to STEM OPT, while getting ready to qualify for an O-1A. Once on O-1A, it’s possible to initiate the green card through EB-2 NIW or EB-1A for individuals born in India or China.

All work visas and most employment-based green cards require a sponsoring company (or in the case of an O-1A, an agent). The EB-1A green card and EB-2 NIW (National Interest Waiver) green card are the exceptions (they both allow an individual to file an application on their own, or an employer can sponsor an employee and file an application on the employee’s behalf).

Often, employer sponsorship requires the company to demonstrate that an employer-employee relationship exists between the sponsoring company and the individual being sponsored for the visa or green card. One way to demonstrate this can be if the co-founder who is seeking a visa or green card owns less than 50% of the startup and if there’s another person at the company offering the individual a job, such as an executive or a director. Talk to your immigration and corporate attorneys as there are multiple ways to legally structure this depending on your specific desired immigration pathway.

In order for a company to be able to successfully sponsor a co-founder and other prospective hires for visas and green cards, founders should be aware of all options available to them. Founders will also want prospective investors to feel comfortable investing in the company as they complete due diligence, so the proper initial company structure and legal compliance are important. I recommend you consult both a corporate attorney and an immigration attorney for assistance with charting the path forward for the startup and the upcoming graduate.

OPT

Most F-1 graduates are eligible for at least one year of employment authorization called Optional Practical Training (OPT). If the founder qualifies and receives their EAD card, or work permit, they would be eligible to work at the newly minted startup for 12 months. F-1 students may apply for OPT up to 90 days before completing their degree, but no later than 60 days afterward.

Students must request that the designated school official (DSO) at their academic institution recommend them for OPT by endorsing their Form I-20 (Certification of Eligibility for Nonimmigrant Student Status) and updating their record in the Student and Exchange Visitor Information System (SEVIS). Once that’s done, students must file Form I-765 (Application for Employment Authorization) with U.S. Citizenship and Immigration Services (USCIS), which is now available for electronic filing online.