Immigration Flashcards
Immigration in General
As an increasing number of people from around the world come to Stanford drawn by the opportunity to pursue entrepreneurial ventures, many international students on F-1 visas, as well as exchange visitors and researchers on other visas such as J-1 and cap-exempt H-1B, find themselves challenged by the restrictions of U.S. visas and immigration status.
Although the Stanford campus, including Bechtel International Center and your academic department, can provide you with many resources about your immigration status, you bear ultimate responsibility for ensuring that you are maintaining valid immigration status inside the United States.
This section aims to provide international members of the Stanford community with a comprehensive understanding of their options. By understanding immigration definitions, utilizing university resources, and obtaining the proper work authorization, members of the Farm community can participate meaningfully in the startup ecosystem. With planning and guidance, visa status need not preclude founding an innovative new company.
How much does an O-1 visa cost? (Estimate for regular & expedited)
The O-1 visa filing fee is $460, and the additional fee for premium processing is $2,500. Premium processing guarantees a decision on the application within 15 calendar days. There is also an additional $220 fee for the issuance of the visa if the application is approved and an additional $85 per person fee for family members accompanying the applicant. All fees are subject to change by US Citizenship and Immigration Services (USCIS).
Note: The guidance below is meant to serve as a high-level summary. Due to the nuanced, context-specific, and highly consequential nature of immigration law, we highly recommend that all students discuss their immigration questions with the knowledgeable staff of theBechtelInternational Center. Additionally, for international students evaluating a startup idea while on a student visa, please read thesethese considerations developed in partnership with the Bechtel International Center. Please reach out if you would also like a referral to immigration lawyers—there are many who will do a free first consult with Stanford students.
The O-1 visa filing fee is $460, and the additional fee for premium processing is $2,500. Premium processing guarantees a decision on the application within 15 calendar days. There is also an additional $220 fee for the issuance of the visa if the application is approved and an additional $85 per person fee for family members accompanying the applicant. All fees are subject to change by US Citizenship and Immigration Services (USCIS).
If you use an immigration attorney, typically they will charge often between $10,000 - 15,000 to support the O-1 application process. We highly recommend this approach if it is within budget.
How much does an H-1B visa cost?
The H-1B filing fee is $325, and the additional fee for premium processing is $3,500. Premium processing guarantees a decision on the application within 15 calendar days. There may be varying additional filing fees for workers applying from abroad depending on the country the worker applies from. All fees are subject to change by US Citizenship and Immigration Services (USCIS).If you use an immigration attorney, typically they will often charge between $5,000 - 10,000 to support the H-1B application process. We highly recommend this approach if it is within budget.
How can I get more help? What are other immigration resources?
Navigating these complex issues requires specialized knowledge. Consult Bechtel International Center and an experienced immigration attorney for any questions regarding maintaining your F-1 status, CPT, OPT, and STEM OPT and to plan your individualized strategy.
H-1B: I am a cap-exempt H-1B researcher at Stanford. How can I start my startup?
If you are currently working in a cap-exempt H-1B, in addition to seeking a new cap-subject H-1B through the lottery to solely work at a new company, you can also consider the option of having the startup file a second, concurrent H-1B for part-time or full-time work at the startup. We recommend seeking legal advice about any intellectual property considerations that may be involved if you are working for Stanford on an H-1B and also working at a startup under a separate, concurrent H-1B.
How can J-1 postdocs found startups?
J-1 holders typically cannot be founders because students holding J visas are not permitted to be self-employed.
Most post-doctoral researchers and Fulbright Scholars on J-1 visas at Stanford obtain O-1A visas to work at startups. However, J-1 Academic Training is another potential route to work authorization that degree-seeking J-1 students can obtain in order to work at startups.
If you are on J-1, check your J-1 visas as well as your DS-2019 Forms to see if any of them state that you are “Subject to 212(e).” If you are subject to 212(e), you need to spend two years back in your home country before you can get certain visas such as an H-1B or L-1, or prior to applying for a Green Card.
Some J-1 holders are able to obtain waivers of the 212(e) two-year foreign residence requirement based on various grounds such as a no-objection statement from the government of your home country, a hardship waiver, fear of persecution, or an interested U.S. government agency, but Fulbright Scholars rarely obtain waivers. 212(e) Waivers for Fulbright Scholars are only granted in rare, extreme situations.
What if you are subject to 212(e), but you need to find a way to start working at a startup immediately?
The O-1A is particularly helpful for J-1 holders who are subject to 212(e). Even if you have not completed your two-year foreign residence requirement or gotten a waiver, these are not barriers to obtaining an O-1A. Please note, if you are subject to 212(e), you cannot obtain an O-1A through a Change of Status in the United States; you will have to seek a visa from a Consulate outside the United States.
Often individuals subject to 212(e) spend 3-6 months a year back in their home countries to slowly fulfill their two-year requirement over a period of several years, in order to later self-petition an EB-1A or EB-2 NIW I-140 green card.
How does my startup hire immigrants who already have visas to work in the U.S.?
Companies, even startups, can hire international Stanford students. See other FAQs for details on CPT, pre-completion OPT, Regular OPT, and STEM OPT.
Also consider sponsoring your hires in the annual H-1B lottery—even early-stage companies can qualify. You need to be incorporated if you are a pre-revenue startup, it’s usually a good idea to have at least one year’s salary as runway in the company’s bank account prior to filing. Additionally, the proffered role must be a “specialty occupation,” which you can think of generally as a professional role, as opposed to a role that doesn’t typically require a Bachelor’s Degree in a specific field, such as an executive assistant.
The electronic lottery happens every year at the end of March. Registration usually begins in February. If your candidate is selected in the lottery in March, your company has through the end of June to file their H-1B petition. In some years USCIS holds additional rounds of the lottery and selects additional beneficiaries in later months to ensure they provide all of the available visas to companies for their candidates.
The earliest possible start date that a company can request is October 1st, which is the first day of the federal government fiscal year.
Note: The guidance below is meant to serve as a high-level summary. Due to the nuanced, context-specific, and highly consequential nature of immigration law, we highly recommend that all students discuss their immigration questions with the knowledgeable staff of theBechtelInternational Center. Additionally, for international students evaluating a startup idea while on a student visa, please read thesethese considerations developed in partnership with the Bechtel International Center. Please reach out if you would also like a referral to immigration lawyers—there are many who will do a free first consult with Stanford students.
Companies, even startups, can hire international Stanford students. See other FAQs for details on CPT, pre-completion OPT, Regular OPT, and STEM OPT.
Also consider sponsoring your hires in the annual H-1B lottery—even early-stage companies can qualify. You need to be incorporated if you are a pre-revenue startup, it’s usually a good idea to have at least one year’s salary as runway in the company’s bank account prior to filing. Additionally, the proffered role must be a “specialty occupation,” which you can think of generally as a professional role, as opposed to a role that doesn’t typically require a Bachelor’s Degree in a specific field, such as an executive assistant.
The electronic lottery happens every year at the end of March. Registration usually begins in February. If your candidate is selected in the lottery in March, your company has through the end of June to file their H-1B petition. In some years USCIS holds additional rounds of the lottery and selects additional beneficiaries in later months to ensure they provide all of the available visas to companies for their candidates.
The earliest possible start date that a company can request is October 1st, which is the first day of the federal government fiscal year.
What if your time on OPT will run out before October 1st? If recent graduates are at the end of their STEM OPT, or if they were not eligible for STEM OPT and they are at the end of their Regular OPT, there is an extra time window called “Cap Gap” that acts as a bridge between this status and the start of their H-1B to allow them to continue working throughout the summer.
An individual would qualify for Cap Gap if their H-1B was filed while they were maintaining OPT status, and they would be allowed to continue working in the U.S. while the H-1B is pending or after it is approved. If you are in Cap Gap and you need to travel internationally, be sure to check with your immigration attorney first if it’s possible.
How do I get a green card?
The two most common green card pathways for Stanford founders are the EB-1A for extraordinary ability if you were born in India or China, or the EB-2 National Interest Waiver, if you were born elsewhere or your spouse was born elsewhere (cross-chargeability). The difference is due to wait times in the Visa Bulletin.
For an EB-1A, although not required, it is common to first obtain an O-1A. To qualify, you must show that you meet at least 3 of the following in your field:
Have received a nationally or internationally recognized prize or award.
Exclusive membership in organizations (usually, invitation-only memberships).
Been profiled in a professional or trade publication or major media.
Have judged the work of others.
Made major contributions to the fields of science, education, art, business or sports.
Written articles that have been published.
Work has been displayed or showcased.
Play a leading role in a distinguished organization.
Command a high salary or compensation.
Have commercial success.
For an EB-2 National Interest Waiver (NIW), you must show that you have an advanced degree or exceptional ability and your work or skills are in the interest of the U.S. If you don’t have an advanced degree or a Bachelor’s plus 5 years of experience, you can still qualify by showing any three of the following: ten years of experience in your field, a license, high salary, exclusive membership in professional. organizations, exceptional abilities and achievements.
To demonstrate national interest, you must show your future work:
Has substantial merit or national importance
Will advance your field.
Will benefit the United States, such as creating jobs or substantially contributing to the economy.
The process for both the EB-1A and EB-2 NIW is:
Step 1: Form I-140 Petition (Premium Processing Available). For your Form I-140, you do not need to prove your case beyond a reasonable doubt. You just need to show that it is more likely than not that your work is extraordinary, exceptional, or in the national interest.
Step 2: Form I-485 Adjustment of Status (no Premium Processing), file along with your Employment Authorization Document (EAD) and travel permission (Advance Parole) applications. This is where you include your spouse and kids.
The Department of State manages the flow of green cards based on categories and countries and publishes the Visa Bulletin every month which indicates who is eligible to file for their Adjustment of Status, or if outside the United States, their Immigrant Visa. An immigrant’s place in the line waiting for a green card is based on a date related to when they started the Green Card petition process, called the Priority Date. If the Visa Bulletin indicates that your Priority Date is current, you can file your I-485 if you are in the United States and you are maintaining status. If your I-140 has been approved and your Priority Date is current, you can file your I-485. If you are filing your I-140 and your Priority Date is current, you have the option of being able to concurrently file your I-140 at the same time.
F-1: What are common temporary visas after F-1 for working at startups?
The most common status is O-1A, followed by H-1B, E-2, and L-1.
O-1A: One reason that the O-1A is great for founders is because there is no numerical annual limit to the number of visas that can be issued each year, so there is no lottery. Additionally, it is usually quick to obtain once you are qualified, it is straightforward to subsequently apply for a green card, and it is relatively easy to obtain even if you are the CEO or hold a majority of the equity in your startup, which can pose difficulties under other visas. This visa can even cover a collection of small projects or services, such as solopreneur projects that might come and go, advisory work in exchange for equity, consulting work as an independent contractor paid in cash, scouting for a venture capital firm, paid speaking engagements, etc. The O-3 status for dependent spouses does not automatically permit work authorization for them.
H-1B: The H-1B sometimes works for founders as well, but the lottery system introduces a great deal of uncertainty. If you have already received an H-1B through the lottery at another company, you can transfer it to a funded startup (even if the funding is a small amount and primarily from “friends and family”). Although H-1Bs are typically sought for professional engineering roles, it is also possible to have an H-1B granted for founders who want to be the CEOs of their companies. It appears that USCIS might be making it easier for founders with majority equity to qualify for an H-1B.
Note: The guidance below is meant to serve as a high-level summary. Due to the nuanced, context-specific, and highly consequential nature of immigration law, we highly recommend that all students discuss their immigration questions with the knowledgeable staff of theBechtelInternational Center. Additionally, for international students evaluating a startup idea while on a student visa, please read thesethese considerations developed in partnership with the Bechtel International Center. Please reach out if you would also like a referral to immigration lawyers—there are many who will do a free first consult with Stanford students.
The most common status is O-1A, followed by H-1B, E-2, and L-1.
O-1A: One reason that the O-1A is great for founders is because there is no numerical annual limit to the number of visas that can be issued each year, so there is no lottery. Additionally, it is usually quick to obtain once you are qualified, it is straightforward to subsequently apply for a green card, and it is relatively easy to obtain even if you are the CEO or hold a majority of the equity in your startup, which can pose difficulties under other visas. This visa can even cover a collection of small projects or services, such as solopreneur projects that might come and go, advisory work in exchange for equity, consulting work as an independent contractor paid in cash, scouting for a venture capital firm, paid speaking engagements, etc. The O-3 status for dependent spouses does not automatically permit work authorization for them.
H-1B: The H-1B sometimes works for founders as well, but the lottery system introduces a great deal of uncertainty. If you have already received an H-1B through the lottery at another company, you can transfer it to a funded startup (even if the funding is a small amount and primarily from “friends and family”). Although H-1Bs are typically sought for professional engineering roles, it is also possible to have an H-1B granted for founders who want to be the CEOs of their companies. It appears that USCIS might be making it easier for founders with majority equity to qualify for an H-1B.
A startup can petition for new H-1B status through the lottery. Another way to hire somebody and get them an H-1B without going through the lottery is by leveraging two concurrent H-1Bs at the same time. If your employee has a part-time H-1B at a “cap-exempt” institution whose employees do not need to go through the lottery (such as a university or a nonprofit affiliated with a university), your startup can file a second, concurrent H-1B for additional part-time or full-time work at your startup. In addition to being a viable strategy to hire professional workers, this can also work for startup cofounders.
E-2: If you are a citizen of a treaty country, you can consider an E-2, especially if you do not plan to raise funds that would dilute the foreign ownership of your U.S. company. This is because the E-2 visa requires that your U.S. company is majority-owned by citizens of your home country who are not dual citizens with the U.S. or have Green Card. In addition, your E-2 spouse can automatically work in the U.S. E-2 Visas are typically granted in 5-year increments and E-2 status is typically valid for two years at a time. Your E-2 spouse can automatically work without applying for an EAD.
L-1: The L-1 is a good option if you have a company located overseas, you have worked there for one of the last three years, and you are transferring to the U.S. (e.g., to open up a new office). An initial L-1 is typically valid for 3 years, but for a new company there is an option to apply for a 1-year L-1 to start operations. The L-1A is for executives and can be renewed up to a total of 7 years. The L-1B is for employees who have specialized knowledge of the company’s product or processes and can be renewed up to a total of 5 years. Your L-2 spouse can automatically work without applying for an EAD.
F-1: My startup requires me to work more - can I complete my degree if I leave F-1 status?
Yes, it’s possible to complete your education and work on forming your company at the same time. Stanford does not require you to be on F-1 to enroll in classes. Some founders choose to pursue a change of status from F-1 to O-1 before they graduate. This allows them to be self-employed, be the CEO of a startup, earn money, and easily begin their pursuit of permanent residence. Holding an O-1 visa also accelerates the green card process.
How much unemployment can I have on OPT and STEM OPT?
You can be unemployed for up to 90 days during Regular OPT. During STEM OPT, you get an additional 60 days, for a total limit of 150 days across Regular OPT and STEM OPT. Ensure your employment is accurately reflected in the Student and Exchange Visitor Information System. To avoid using unemployment on Regular OPT, consider volunteering at least 20 hours per week.
Example: Let’s say your company closed 6 months into your 12-month Regular OPT EAD. You were unemployed for 30 days, but then you started volunteering for 20 hours a week for 30 days while you looked for work. Two months after your company had closed, if you started working at another job. In this case you would have used 30 days of unemployment, and you would have 30 days remaining. Additionally, 8 months into your 12 month period, you would have four more months of Regular OPT remaining.
Regular Optional Practical Training (OPT)
Description: After graduation, you can do Optional Practical Training (OPT), where you can work for one year in an area directly related to your field of academic study.
Requirements & limits: OPT is limited to a duration of 12 months. But remember, if, for some reason, you have obtained pre-completion OPT prior to graduation, the duration you are allowed to work under post-completion OPT (i.e., the portion after graduation) will be reduced by any pre-completion OPT received. At Stanford, at or near degree completion, the Bechtel International Center will update your record in the Student and Exchange Visitor Information System and generate your new Form I-20. Then you have 30 days to submit your OPT application on Form I-765, which is the work permit application. The window to apply is between 90 days before and 60 days after you complete your degree. Once you receive your Employment Authorization Document (EAD) card and the initial validity date of the card has passed, you can start work.
Scope of work & compensation: Although most non-founders typically work at for-profit U.S. companies on OPT, you can work at a non-profit or volunteer. Additionally, founders can be self-employed, even at their own startups, for cash and/or equity. You have broad flexibility in setting your wage but please keep local minimum wage laws in mind.
STEM OPT Extension (24 months)
Description: STEM OPT is a 24-month extension to Optional Practical Training (OPT) and is available if you graduated with a recognized STEM degree listed on the STEM Designated Degree Program List. Requirements & limits: Transitioning into STEM OPT requires a fresh work permit with different requirements. Your employer must be enrolled in and maintain good standing with E-Verify. Additionally, your Form I-983 training plan needs to explain how your employer will provide formal training relevant to the field of study, and offer a position comparable to U.S. workers in terms of responsibilities, hours, and compensation. Once Bechtel issues your Form I-20, you will need to submit a new Form I-765 to USCIS.
Scope of work & compensation: Employment must be at least part-time, paid and supervised. You must work at least 20 hours per week. You can be paid cash and/or equity.
F-1: How can I obtain work authorization before I graduate?
F-1 students entering the United States must demonstrate the ability to cover school and living expenses without planning to work off-campus. As a result, students who are still enrolled in their F-1 academic program can only pursue work in certain specific cases under the appropriate Employment Authorization Document (EAD):
Economic Hardship (Form I-765)
Summary: One path to off-campus employment is in the case of severe economic hardship after one year of academic enrollment, or in emergency situations defined by the Department of Homeland Security (DHS), such as natural disasters or financial crises affecting a group of F-1 students.
Requirements & limits: If you have been enrolled in your academic program for a year, have good academic standing, maintain a full course load, demonstrate that the work will not impact your studies, and demonstrate that you are facing unforeseen severe economic hardship, then the Bechtel International Center can recommend an I-765 work permit for off-campus work.
Scope of work & compensation: This type of EAD allows you to get a job or be self-employed. You can work in any field, usually up to 20 hours per week. You can receive cash and/or equity.
Curricular Practical Training (CPT) (Form I-20)
Summary: Curricular Practical Training (CPT) is available as a means to gain practical experience directly related to your academic program.
Requirements & limits: Students, if eligible, can usually apply for CPT after a year of full-time enrollment and before graduation to legally work for pay. At Stanford, you typically need to demonstrate an academic advisor’s endorsement. Being able to describe job details such as position, duties, wage, and time commitment is essential. You may need to budget for course credits associated with the required activities. The approval process involves your academic department and Bechtel International Center, which issues a modified Form I-20 indicating your CPT authorization.
Scope of work & compensation: CPT permits both full-time and part-time employment opportunities and necessitates documentation like a cooperative agreement or an official letter from the employer. An employer must supervise you; you cannot be self-employed. If you use one year of full-time CPT (more than 20 hours of work per week), you lose your eligibility for Optional Practical Training (OPT). Part-time CPT (less than 20 hours of work per week) does not affect OPT.
Pre-Completion Optional Practical Training (OPT) (Form I-765)
Summary: Occasionally, students choose to use a portion of their Optional Practical Training (OPT) before they graduate, or Pre-Completion OPT. Opting for Pre-Completion OPT means limited part-time work during the academic term, and it can affect your ability to qualify for post-graduation OPT. If students wish to incorporate their startup while still in school, it is advisable to obtain a pre-completion OPT before founding and working for their startup because it is challenging to prove the absence of “work” after the startup has been founded.
Requirements & limits: To be eligible, you must have been enrolled full-time for at least one academic year. Every two months of part-time work reduces your post-graduation OPT period by one month, and if you complete one year of part-time Pre-Completion OPT (20 hours per week), your full-time OPT length will be reduced from twelve to six months. If you complete one year of full-time Pre-Completion OPT (40 hours per week), your full-time OPT limit of twelve months will be completely exhausted, and you also will lose access to post-graduation STEM OPT. If you have a STEM degree and will qualify for the additional 24-month STEM OPT extension but need to be self-employed at your startup before you graduate, Pre-Completion OPT can be a viable strategy. Make sure that you will have at least a few months of Regular OPT eligibility remaining for after you graduate so you have time to maintain valid status and apply for your STEM OPT extension.
Scope of work & compensation: During the academic quarter, you can work part-time (20 hours or less per week), and during the breaks, you can work full-time. You are allowed to be self-employed and you can be compensated with cash and/or equity.
F-1: When are questions about my immigration status likely to arise?
In F-1 status, you bear the burden of proof to demonstrate that you have non-immigrant intent and that you are not engaging in unauthorized employment in the United States. State Department and Customs and Border Protection officers have the authority to deny or revoke your visa, or deny your admission into the United States.
Questions about your activities and immigration status are most likely to arise when you are:
Applying for your initial F-1 visa at the U.S. Consulate
Traveling to the U.S. and arriving at an airport or land border port of entry
Updating your F-1 records in SEVIS (Student and Exchange Visitor Program)
Obtaining a new Form I-20
Renewing your F-1 student visa
F-1: Which non-work activities are permitted?
The simplest involvement allowed under F-1 status is passive ownership of a business as an investor, where you do not actively work or receive pay. Otherwise, any labor or services performed in hopes of future remuneration, such as salary, equity, or intellectual property rights, could qualify as “work.”
Nevertheless, on an F-1 without work authorization, you can usually engage in the following activities before incorporation or to facilitate incorporation:
Conducting product or market research
Meeting with prospective co-founders
Negotiating contracts in your personal capacity (e.g., personal consulting to test the market)
Applying for an Employer Identification Number (EIN)
Setting up a corporate bank account
Applying for business licenses
Some students on F-1 visas choose to incorporate prior to obtaining work authorization. However, F-1 students are advised to obtain work authorization before incorporating because it is hard to prove the absence of “work” once they have founded a company. Students who incorporate without prior work authorization also risk being denied future H-1B or green card status, so they should be aware of and gauge their ability to bear this risk.
Once the company is incorporated, further assistance is more likely to be considered “work.” Therefore, you should always speak to an immigration attorney before continuing to work.
