Common Misconceptions of Immigrant Founders by Ann Cun.

About the writer:

Ann has been practicing immigration law since 2008.

She is a graduate of UCLA and UC Hastings.  She manages Accel Visa Attorneys, PC, a boutique US immigration law firm advising startups, small and medium sized companies in the hardware, software, fintech, medical and scientific arenas.  Her expertise is in O-1, EB-1, NIW and helping companies develop efficient yet robust immigration policies and procedures to hire the best and brightest.

I am a refugee immigrant. 

Here is her immigrant story, told in her own words…

I came from Vietnam, but I am not ethnically Vietnamese. My family is Chinese, who was living in a different world, during a very different time.

After I was born- and after the war- most of my family’s land was confiscated, and we didn’t leave the country with anything other than our personal belongings.

We had no resources, except for the fact that the country was embroiled in a political battle with the U.S., and at the time we were essentially the “right” type of refugees. Because in this day and age- in this current climate- there is a specific type of refugee the United States will advocate for and there are specific types of refugees to whom they will look the other way. 

Without getting into all the nitty gritty details…after coming to the U.S. at the age of three, I always knew I was different. I always knew we were on borrowed time. That this was not our country. I did not look like a lot of the individuals I grew up with and it was always a struggle to learn a different language and navigate between what American culture is and how it evolves while still paying homage to my original homeland.

So you can see there are a lot of influences into what I have become today as an immigration lawyer.

When I turned eighteen, I filed for my naturalization paperwork. It was a scary journey. But I figured “I’m in college! Maybe I can try this out on my own.” And that was my first step into immigration and what that meant.

Once I graduated university I was, for the most part, really lost until I started working with an immigration law firm.

Here I am today, 21 years later.

Over the years I have met many incredible individuals who have yearned to start a business. And they’ve wanted to understand “what can I do, how can I do it and how can I avoid having immigration become part of an issue for me?”

Time and time again I’ve had entrepreneurs come to me and tell me that they went to three or four other immigration lawyers that told them “no.” That said there was “no other way.” That it “wasn’t possible.” 

Fortunately, I have had many opportunities to evaluate so many individuals over the years and I’ve seen companies go from seed to angel to series A and then get acquired. Many are now building their second or third companies!

My hope and goal is that whatever your journey is, that you’re able to go through that path without immigration becoming a hurdle for you.

In today’s newsletter, I will dispel some misconceptions common to Immigrant Founders…

In addition to the normal challenges of starting up a company, Immigrant Founders face greater challenges navigating the byzantine United States immigration rules…

However, Immigrant Founders need not be wary of pitfalls.  The key to avoiding the common misconceptions for navigating immigration rules is to focus on the goals of achieving entrepreneurship. 

Here are five misconceptions common to Immigrant Founders:

Misconception #1: Immigrant Founders Cannot Hold H-1B Status Through Their Own Company

Misconception #1: Immigrant Founders Cannot Hold H-1B Status Through Their Own Company. Immigrant founder dilemma

Many Immigrant Founders think having their own companies sponsor them for an H-1B is nearly impossible.  This misconception is not true.  Immigration regulations clearly outline the requirements for a petitioning entity or person to sponsor a foreign worker for a specialty occupation in H-1B status.  Those regulatory criteria are outlined and available for anyone to find online.  The issue is how holding equity might impact an Immigrant Founder’s chances of being approved for an H-1B. 

Generally, to overcome challenges as a startup company sponsoring one of its founders for an H-1B, the startup company should be prepared to satisfy the H-1B criteria and what a potential immigration reviewer would be scrutinizing.  Those areas include the finances of the startup company, its business operations, its business model, and the details of the job duties.  Every startup company will be at a different stage of its ideation to operations.  Therefore, no one-size-fits-all approach will work.  Like the fruit ripening on a tree, the point at which the fruit is ready for harvest will vary on the person picking that fruit. 

Similarly, depending on where the startup company has evolved in that timeline, an H-1B petition for an Immigration Founder is entirely feasible.  It is beneficial for Immigrant Founders to explore this option further whenever feasible.

Misconception #2: An Employer Must Sponsor Your Work-Based Greencard

Misconception #2: An Employer Must Sponsor Your Work-Based Greencard. Immigrant founder dilemma

“To qualify for an employment-based green card option, a company must sponsor an Immigrant Founder.”  This misconception is an easy one to dispel.  Fortunately, US immigration rules allow highly qualified and accomplished foreign founders to sponsor themselves under the first or second employment-based categories (EB-1 or EB-2).  The Foreign Founders need NOT be physically in the US nor prove they have received a job offer in the US.  So long as the Foreign Founder can demonstrate satisfaction of the EB-1 or EB-2 criteria for self-sponsorship, these avenues for the green card need not involve an employer.

Misconception #3: You Must Have an O-1 to Qualify for an EB-1

Misconception #3: You Must Have an O-1 to Qualify for an EB-1

Once Immigrant Founders discover the EB-1 path toward a green card is a potential option, they incorrectly believe that the only path is to first qualify for an O-1 visa, the temporary work authorization.  This is not true.  Any individual with the credentials to qualify for an EB-1 extraordinary ability visa may apply regardless of whether they previously held O-1 status.

Misconception #4: You Will Find the Answer on Google

Misconception #4: You Will Find the Answer on Google on immigrant founder

Google searches will lead you down a rabbit hole.  The misconception lies in believing a complex immigration scenario, when punched into a Google search, will yield a ready-to-execute answer. It is the equivalent of asking Google “What causes a stomachache?”  Just because another Immigrant Founder experienced certain results may not necessarily mean that the same outcome will be guaranteed for you.  While ChatGPT or Google, or the likes of modern-day technology, can “tell” you only so much, it will never replace actual legal advice from an experienced and skilled immigration attorney. Some of the answers you seek online will ultimately require detailed assessments by an immigration attorney.

Misconception #5: All Immigration Lawyers Are Created Equally

Misconception #5: All Immigration Lawyers Are Created Equally

Many Immigrant Founders have turned to me for a visa assessment after being told by multiple other immigration lawyers their credentials were not qualified for an O-1 or EB1.  Every attorney can assess a matter based on their available time, staff, and experience resources.  You may be turned away if they don’t have sufficient time to assist you.  You may be turned away if they do not employ skilled staff members to prepare the casework.  If the attorney lacks the experience to navigate the visa category or lacks expertise in leveraging your credentials in the O-1 or EB-1 framework, they will turn you away. 

Rather than say they lack time, staff, or expertise, you may be told your case is not strong enough.  In those contexts, it is helpful to ask that attorney why they do not believe you qualify. Ask them what you can do to fortify your credentials.  The responses to these questions will reveal a lot more about the skills of the attorney assessing your credentials.

Misconceptions abound but do not let them dictate how you move forward in building your company and your future in the US! Do you want to join our upcoming Foreign Founder Clinics? We will take you through the step-by-step process of finding out a way to be an immigrant founder in the US! Then sign up on our waitlist here and be the first to know when the clinics are live.

And have you read the last article by Immigration Attorney Ann Cun, 7 Questions To Vet Immigration Attorneys? Click here.


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