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Immigration Considerations for a Start-Up Company

  • Type of incorporation: if possible, consult immigration counsel before forming the company to understand the impact on beneficiary of ownership of petitioning company.
  • Proof of funding: evidence of funding and, if possible, cash flow to provide a salary for a foreign national employee is important evidence for a start-up wishing to employ a foreign national on a work visa.
  • Existing Operations of the Start-Up: US government immigration authorities will examine the level of operations if the start-up files a petition for a nonimmigrant worker, particularly if the beneficiary has an ownership interest in the company.
  • In the case of an H-1B visa petition, where the beneficiary is an owner of the company: petition requires proof that the company exercises control over the beneficiary and the beneficiary does not control the company. We can provide an agreement documenting "control". ¬†Company may need to form a Board of Directors if not yet in existence to execute this agreement.

Existing evidence helpful in building a successful immigration petition may include:

  • Corporate bank statements;
  • Proof of financing;
  • Patents relating to company's product, if available;
  • Proof of payroll records showing the company already employs people;
  • Proof that the company is actively hiring: Engagement of headhunters or recruiters, ads, etc.;
  • Engagement of public relations, advertising, accounting, web development, consulting, and/or law firms;
  • Contracts or agreements with customers or clients showing future revenue stream into the company. If none, include letters of intent or draft agreements;
  • Signed office lease and, where possible, a brochure or photos of the office space;
  • Newspaper articles or other press about the company;
  • Business plan that explains the mission of the company, staffing targets, expenses, and cash flow and revenue goals for the next three years; and
  • Any of the above related to an existing parent company overseas.

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Author

Susan J. Cohen

Member / Founding Chair, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.