Ask Sophie: Can I launch a startup if I’m in the US on a student visa?

Here’s another edition of “Ask 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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Dear Sophie,

I just found out that I’ve been accepted to an American university, which was my first choice!

One day, my dream would be to create my own startup in the U.S. Is there any groundwork I am allowed to lay to make my dream come true?

— Forward-Looking Founder

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Dear Forward-Looking,

Congratulations on starting your U.S. journey to make your dreams come true! The United States needs entrepreneurs like you who have the grit, determination and innovative vision to create technologies that improve our world!

However, a word of caution: The F-1 student visa is only for individuals who do notintend to permanently immigrate to the United States. I’ll share more details below.

Following through with your studies and graduating will set the stage for you to get an employment authorization document (work permit) so you can embark on fulfilling your dream. Let me start at the beginning and talk about the F-1 student visa.

F-1 visa

The F-1 student visa is a nonimmigrant visa that enables you to study in the United States at a SEVP-certified school and offers the most options to work both before you graduate and after. For a nonimmigrant visa, you must demonstrate to immigration officials — at visa interviews and when you enter the U.S. at the airport or other port of entry — that you intend to eventually return to your home country. If you express immigrant intent (the intention of remaining in the U.S. permanently), you may be denied an F-1 visa or entry into the U.S.

As an international student, you — neither the university admissions office nor the international student office nor the university’s Designated Student Official (DSO) — are responsible for your maintaining legal status. It is strongly recommended that you attend your university’s orientation for international students and stay in close contact with the DSO at your university. A DSO will need to sign off for your work authorization under OPT and STEM OPT.

Getting practical training

As a full-time F-1 student, you cannot work in the U.S. without proper work authorization. If you do, you risk severe consequences, including denial of future immigration benefits or even removal proceedings.

OPT enables you to get a proper work authorization (an Employment Authorization Document, also known as a work permit) to gain practical work experience in your field of study. Students are eligible for up to 12 months of full-time work under OPT either before they graduate (pre-completion OPT) or after they graduate (post-completion OPT).

Most F-1 students choose to start OPT after they graduate so they can work full time. Students who choose to do pre-completion OPT can only work part time when school is in session, and every two months of part-time OPT during school will reduce by one month the amount of OPT after graduation.

If you want to start working at a company, such as a startup, while taking courses, I recommend pursuing Curricular Practical Training (CPT) if it’s available at your university and for your degree program. As long as you work only part time under CPT (20 hours per week or less), you will retain your eligibility for post-completion OPT. (If you work more, you will be ineligible for OPT.) CPT offers full-time F-1 students who have completed at least one academic year but have not yet graduated the ability to gain practical training in their field while studying.

F-1 OPT allows you to work for your own startup, because you can be self-employed or even volunteer. However, working for your own startup while on CPT (as well as STEM OPT extension, which I’ll discuss later) is tricky since unlike OPT, working for your own startup is not specifically allowed and compliance with supervision, wages and oversight is required. If you want to work for your startup under CPT, I recommend consulting an immigration attorney to ensure that your startup and your role within your startup meet the requirements.

It can be easier for individuals who have a co-founder who is an American citizen or a green card holder, because they can help them get the startup off the ground. You will need a “someone else” at your startup to serve as your supervisor for you to qualify for CPT. As an F-1 student, you can usually engage in some activities without work authorization, such as:

• Conducting research.
• Meeting with prospective co-founders.
• Attending and participating in business meetings with prospective investors and clients.
• Negotiating contracts.
• Incorporating a U.S. company.
• Applying for an Employer Identification Number (EIN).
• Applying for a business license if required by the state your company will be operating in.

However, you should always speak to an attorney before undertaking any of these actions to confirm your specific plan will be in compliance with all immigration, corporate, employment, tax laws and more.

You must request CPT from your school’s DSO, who will update your Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status) if you are approved. You will be authorized to work but will not receive an Employment Authorization Document (EAD) as you do when on OPT or STEM OPT, the two-year extension of OPT for F-1 students who graduated with a STEM degree.

Take a look at this previous Ask Sophie column for more details on applying for an OPT EAD and a STEM OPT EAD and timing. Premium processing is now available for Form I-765 (Application for Employment Authorization) for F-1 students!

Obtaining a work visa

I will talk about two work visa options here, but your immigration attorney may suggest other options based on your circumstances and goals as there are many.

The H-1B specialty occupation visa has recently become more attractive for startup founders. All work visas require an employer sponsor to file a visa petition on behalf of the employee. To prove an employer-employee relationship exists, startups have to demonstrate that the startup founder is hired, supervised and can be fired by the employer. Previously, that required founders to reduce their stake in the company they founded to 50% or less to qualify for the H-1B. However, USCIS recently provided guidance that sole or majority ownership in the company is not required to prove an employer-employee relationship.

Your startup can register you in the annual H-1B lottery in March before you graduate. If you aren’t selected in the lottery, your startup can register you the following year while you’re on OPT and the following two years while you’re on STEM OPT. Check out this podcast on how your startup can submit a strong H-1B petition on your behalf.

Many startup founders, particularly those who raise funding, qualify for the O-1A extraordinary ability visa. The O-1A requires that you meet at least three of eight criteria. This previous Ask Sophie column describes in detail what it takes to meet each criterion. It’s a great advantage because there is no lottery and you can apply any time of year.

You’ve got this! Remember to enjoy!

— Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity and connecting the world by practicing compassionate, visionary and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!