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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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Susan J. Cohen

Member / Founder and Chair Emeritus, 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.