Immigrant founders: keep your H-1B visa in 10 steps
Transferring your H-1B visa to your startup might seem daunting, but it’s possible. Check out this 10 step guide on how you can do it.
As an immigrant from Mexico, I learned how to transfer my H-1B visa from my big-tech employer to the startup I co-founded, SketchPro. While it might seem daunting, it’s possible, and I’ll share exactly how we did it below. From start to finish, the process took ~30 calendar days and 10 steps. I've wanted to start a company since I was very young, and the U.S. immigration system made me feel scared, annoyed, and frustrated with regard to entrepreneurship. If those feelings resonate with you, read on.
Some context…
Quick disclaimer: This is not legal advice. Everyone’s immigration experience is different, so I want to establish some context on my situation.
We were admitted into Neo Accelerator and received funding.
American co-founders. My two other co-founders are American citizens. We all own an equal number of shares.
The H-1B visa requires that an employer-employee relationship exists. In my case, this meant that the CEO of SketchPro, my co-founder, hired me and also has the power to fire me.
Step 1: Find an (amazing) immigration lawyer.
We spoke to ~7 immigration lawyers. 4 of them told us that transferring the H-1B was going to be impossible. The last 3 told us otherwise. SketchPro got in touch with the immigration lawyer we ended up using via the recommendation from a close friend (who is also an immigrant founder).
There are a few key associated fees we had to be mindful of:
Payment to the USCIS: $4,210, including the premium processing fee. As part of the fees to the USCIS, there is a fee for the ACWIA that must be paid by the company, not the beneficiary. SketchPro used forms G-1450 and a Ramp company credit card with our CEO’s name on it. Sidebar: I like Ramp a lot.
Payment to lawyer: $4,000, in 2 installments of $2,000. Note that different lawyers will have varying fees.
Step 2: Incorporate
We worked with our corporate counsel to incorporate. This process took longer than expected, and many founders share the same sentiment.
As a part of this process, I was not designated an officer of the company (i.e. no C-Suite positions), but I was part of the board of directors, in which I was strictly categorized as “not an employee.”
Step 3: Get an EIN and file form CP-575
Our lawyer asked SketchPro to send him IRS Form CP-575 in order to prove to the USCIS that our company exists. A company can only get this form after incorporating and applying for an EIN on the IRS website, which we did.
We had no trouble getting an EIN, but I suspect that this was possible because our CEO, who filled out the form, is an American citizen. For context, Stripe Atlas' documentation cites that this process could take up to a few weeks.
Step 4: Open a bank account
SketchPro opened a bank account with Mercury, which took ~2 days. We then received the wire for our investment from Neo in less than a day, thanks to the Neo team.
We then sent our lawyer our most recent bank statement, showing the balance in Mercury, which he then attached to the petition.
Step 5: Get offered a position by the company
While we were in the middle of Step 4, we started figuring out what positions SketchPro would be hiring for. Hiring someone on H-1B is slightly trickier than it seems for a number of reasons:
SketchPro needed to show the DOL that the worker on the H-1B will be paid at least at the prevailing wage of the position. We used the Foreign Labor Certification Data Center to determine what would qualify as a “prevailing wage” in San Francisco.
SketchPro needed to show to USCIS that the position for which the H-1B worker is being hired requires a minimum of a Bachelor's degree (i.e. it is a specialty occupation). The USCIS used the Bureau of Labor Statistics to determine eligibility for our case. Unfortunately, the position that SketchPro chose (head web developer) gave us problems, but they were eventually resolved.
Step 6: Draft and submit petition forms
SketchPro’s immigration lawyer drafted the petition forms required, primarily the I-129 and G-28 forms, and sent them over for review.
In these forms, SketchPro answered “yes” to the question regarding whether the beneficiary (me) has ownership in the company. We also included the exact percentage amount that I own.
Furthermore, since SketchPro is a private company, we answered “confidential” to the question regarding our revenue.
As a result, the USCIS didn’t have any problems with the forms.
Step 7: Write a letter in support for the petition
Once we filled out and submitted the forms, SketchPro wrote a letter, with the help of our lawyer, describing why the company needed to hire me, why my abilities are so unique such that the company required my services, and why I fit the role. In retrospect, this letter could have included even more details than it did, like what classes I took in college that relate to the job description, for example.
Step 8: Get approval on a LCA from the DOL
Once we had all of our forms, documents, and letters, our lawyer first submitted the petition to the DOL. We did this to get an approval on a Labor Condition Application (LCA), which is required to submit to the USCIS.
The DOL took approximately 1 week to get back to our lawyer with an approval, but they can take up to 10 days.
Step 9: Submit the H-1B transfer petition to the USCIS
Once SketchPro received approval from the DOL, our lawyer submitted the H-1B transfer petition to the USCIS with premium processing, which guaranteed we would receive a response in 15 days, rather than what could be many months. The USCIS got back to us in a week.
Our lawyer mentioned that, in theory, I could have legally started working for the company as soon as the USCIS sent us a receipt notice of the petition. Of course, this was risky since they still could have denied the petition.
Step 9.5: Fulfill possible request for evidence
The USCIS responded to our petition with a request for evidence (RFE). We panicked for a second, but it ended up being fine.
The RFE mentioned that in the USCIS’ documentation, the job description for “web developer” indicated that high school diploma holders may qualify for the job. They requested evidence to show that the position indeed qualifies as a specialty occupation:
In the reply, SketchPro submitted a few things:
A letter signed by our CEO, in company letterhead, detailing with a lot of precision why my specific degree was required for the position. Here, he mentioned the academic papers that I would need to implement, as well as the classes that I had taken during my undergrad degree that were required to perform the job’s duties.
A letter of support from our investor. In this letter, Ali (Neo CEO) corroborated that the position at SketchPro was complicated enough to require a bachelor's degree in the fields I studied.
A document signed by our CEO, in company letterhead, with job postings showing similar requirements. We sent a document of 7 job postings for Head/Senior/Lead Web Developer roles that showed a minimum requirement of a bachelor's degree in CS.
An org chart signed by our CEO, in company letterhead, showing that all employees have similar credentials.
In theory, we could have skipped this part of the process if we had submitted all of this material with the initial petition!
Step 10: Get to building
After 4 more days of waiting, the USCIS got back to SketchPro with an approval notice. I could finally be added to SketchPro’s payroll. More importantly, I could finally begin building the future of architecture and spatial design.
It took SketchPro around 4 weeks after incorporating the company to transfer my visa to the company. This could take less than 3 weeks if everything is done efficiently.
I would like to thank the people and communities that helped me along the way:
Neo. When my co-founders and I were looking for funding for our not-yet-incorporated company, Neo went above and beyond to help me get my visa transferred. Ali, Neo’s CEO, is an immigrant himself. He understood what I was going through, and did everything in his power to make the process of transferring my visa as easy as possible. Ali and the Neo team drafted personal letters of recommendation, put me in contact with the right people (thank you Emily, Claire, and Enver), and even extended an important deadline by over 6 months, so that the petition went smoother. Neo not only took a bet on us by investing, but they provided us with a community and all the tools me and my co-founders needed to keep pursuing our dreams.
My fiancé and my co-founders Andre and Julian for being my rocks throughout the process. They helped draft legal documents, spoke to immigration and corporate lawyers, and made sure everything went as planned. You guys are the best!
If you’re an immigrant pursuing your passion of becoming a founder, I hope our experience proves helpful to you! If you read all the way here, I wish you the best of luck and success in your company. I will be cheering for you!
César Ramos Medina, Co-founder, SketchPro
César is a co-founder at SketchPro. SketchPro is the first AI-native design platform, allowing architects, interior designers, real estate developers, and end clients use the power of AI to design physical spaces together. Before this, he was a Data Scientist at Facebook, where he was the lead DS for Workrooms and developed causal inference tooling. Cesar studied Computer Science and Mathematics at Columbia. He is originally from Mexico, and will speak Spanish with you any time he gets a chance.
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César, thank you for sharing your experience! As an immigrant myself, I totally get the extra anxiety and stress you have to endure. On the flip side, it also makes you stronger and more resilient. It builds character! Good luck with your startup! You're amazing!
Hi Cesar, thanks for sharing. I am a distant foreigner hoping to work and share with people like you.