One of my favorite clients recently successfully sold the company she had built from scratch. She inspired me from the moment I met her almost 10 years ago. Most people associate startups with tech companies. But her business was not in the tech field; rather, it was in the now-beleaguered supply chain industry that is bedeviling the world economy.
The immigration journeys of people like Anna (the name I’ll use for this article) aren’t the ones people get to see or understand. You won’t see their stories playing out on the evening news; seldom are they the inspiration for immigration protests and rallies. The U.S. currently has no clear path for entrepreneurs who want to come to the U.S. to grow a business here; rather, there’s a mishmash of nonimmigrant visas that allow them a limited presence in the country — if they’re lucky.
A startup visa like the one recently introduced by House Speaker Nancy Pelosi, The America Competes Act of 2022, would address this immigration vacuum and many of its symptoms I address here. It would also eliminate much of the uncertainty that arises from both the immigration perspective as well as the practicalities of operating a business.
I want to shed some light on the life cycle of this journey, with its many twists and turns, using Anna as the manifestation of so many of my entrepreneur clients who have created startups here and are making a difference in this country.
When I first met Anna, she was CEO of a foreign company with many U.S. clients — quite common in today’s global market. With such companies there often comes a point where it’s imperative for the owner to be closer to clients, to meet them on short notice when necessary. Anna was at that stage when she reached out to us a decade ago; we sorted through the alphabet soup of visa options available to people in her position. There were two: the E2, or investor visa, renewable every five years, and the L1A, which allows an intracompany transfer to the United States. We opted for the latter, which was more straightforward.
I remember when we first sat down to talk to her about her job duties as part of the application process. Like most successful professionals, she didn’t think to list all the things she does in her position as CEO. They were so second nature to her she believed they must be obvious to everyone else. But for the purposes of this particular visa, used for the transfer of executive- and management-level employees, whether someone is performing the duties of an executive is a crucial fail/pass test. I spent a lot of time asking questions such as: “Do you make decisions about the budget?” Her response: “Well, of course, I do, I’m the CEO.” Gradually, we were able to demonstrate on paper what she did in real life and her L1A was ultimately granted.
But for new companies in the U.S., an L1A is given for only a year. That meant that pretty quickly, we had to file an application to renew it. She was able to add two more years to her U.S. stay.
In the meantime, her business was growing and she needed more help from people at the mother company who knew the operations inside and out. We were able to successfully obtain another L1A for key personnel.
Anna’s expanding business soon began attracting the attention of bigger firms in her industry. One of the things most founders will tell you is that their exit strategies are often precarious because they lack permanent immigrant status in the United States. Even if a new and bigger company buys them out, most founders would have to stay on for at least a year or two to ensure a seamless transition. And with the limited types of visas available to founders, there isn’t always a good option for obtaining permanent residency, (a green card) in the United States.
We were lucky, however, because the L1A does have a path to a green card, referred to as an EB1C. So, we began the process of applying for that.
As immigration attorneys, we always have to remember that our clients are people with personal lives, not pieces on an immigration chessboard. And personal issues arose for Anna that challenged and tested the process all along the way.
Eventually, the time came to meet with an immigration officer for the final interview. There are many questions she and other founders at this stage are asked to assess their worthiness of legal permanent residency in the United States: Is she indeed an executive of her company? Has she committed any crimes in the past? Finally, the officer approved the application, and we all left the U.S. Citizenship and Immigration Services offices beaming. But our celebration was short-lived. As I got to the parking lot and started my car, the immigration officer phoned me. He told me he wouldn’t be able to grant my client a green card because there were currently none available. The government had halted all green card issuances for that day.
I was stunned.
As immigration lawyers, we learn about the availability of green cards through what’s known as the visa bulletin, issued by the government around the middle of each month to forecast visa availability in the month ahead. But I cannot recall a time when the bulletin was implemented immediately.
We were in a holding pattern because there were no green cards available. Anna had to wait almost a year before she could actually be issued one. In the interim, she could continue to function fully under her L1A status which had to be renewed for another two years. For other founders, the wait for a green card to become available could be anywhere from two to over 20 years, depending on their country of origin and category of green card application.
Throughout all this, discussions about the sale of the company were in full motion. The L1A manager, who had been transferred in to help run U.S. operations, was nearing the end of their tenure, and we needed to find a way to keep them here. The immigration laws for successor entities in an L1A to EB1C situation is not as straightforward as it is in other visa to green card categories. In addition, there are myriad implications with buy-in from future owners, not the least of which is whether they’re even willing in the first place to navigate this visa process for an employee. In this case, fortunately, the new owners have assumed all obligations giving us a path forward.
As the immigration lawyer in these cases that involve other attorneys, financial experts and other professionals, my ultimate responsibility is ensuring everyone’s immigration status remains intact throughout the life cycle of the company. Ensuring everyone involved is aware of all the visas in play and that they all understand what would need to happen in a transition, merger or acquisition is a crucial part of the process. I essentially take on the role of a juggler: executives at the target company need to be reminded about immigration deadlines and other issues; those acquiring or merging with the company need to be aware of the immigration obligations involved. For Anna’s company, the immigration strategy was fully implemented and became part of the understanding of the sale.
It should be noted that a startup visa would consider this successful sale as part of the positive evidence for immigration purposes.
Life is constantly throwing us curve balls. But Anna handles her business and the personal challenges that come with it with savvy competence and graceful leadership. She has created hundreds of jobs in the United States — both directly and indirectly — and has contributed to the economy in so many ways. She is the example of the American Dream that our founding fathers aspired to, to make America a place for all.
Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America. She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree. Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at [email protected], connect with her on LinkedIn or follow her on Twitter at @tahminawatson.