From F-1 to a Green Card: NIW Risks for Founders

Let’s say you’re someone who is already in the United States on an F-1 visa, completing a Masters’ or Ph.D. program or on OPT or STEM OPT, and you develop a groundbreaking idea for a start-up business. Let’s say the technology you developed is so innovative that it will advance the field as a whole and presents a case for national importance. Could you move directly from F-1 to a green card based on your proposed endeavor to lead this new startup?

Can You Go From F-1 to a Green Card on a Startup Idea?

Technically it’s possible and we’ve had successful cases where this has worked, but there are some important risks that you should ensure to avoid, and the strategy must be designed very carefully. In this article, I will go over a few key considerations.

The Evidence Problem in Going From F-1 to a Green Card

The case for NIW eligibility will be stronger if you build more progress and traction on your startup, but you will need to secure work authorization to do so.

The first key point to understand is that there is an inherent tension between how much you should develop and advance your startup for a strong NIW argument versus and you should refrain from doing to comply with the scope of activities allowed under F-1 status.

On one hand, the more documentary evidence of traction you can present regarding the progress of your startup, for example, in the form of contracts with major U.S. institutions and business partners, admission to and completion of incubator or accelerator programs, development and publishing of intellectual property, the stronger your NIW case will be, because this will support that you’re well positioned to advance the endeavor and that your proposed endeavor has been recognized for its prospective broad impact to the industry, which also corroborates support national importance.

On the other hand, an F-1 student who is studying full time can’t simply start working on a business project, regardless of whether they receive a salary, because F-1 students are not allowed to “work” in the U.S. beyond what is specifically authorized under the regulations or what is specifically approved under CPT, OPT, or STEM OPT programs.

What Counts as “Work” Under F-1 Status

The definition of “work” is very broad, and the closer your involvement with a new business entity resembles the productive day-to-day job duties of a CEO, this can raise serious questions of whether you weren’t engaging in “unauthorized work” that is outside the scope of what is allowed under your F-1 status. This can be construed as a violation of status that will threaten the viability of your green card case in the long run.

Then what are some possible approaches? Let’s consider a few options.

Working on Your Startup While Pursuing Coursework as an F-1 Student

If you’re currently pursuing full-time coursework as an F-1 student and not using CPT, OPT, or STEM OPT, you will be very limited in the type of activities you can engage in towards establishing and developing your startup. You would likely be permitted to take incipient preparatory, exploratory steps such as creating a corporation or LLC. However, once you take a more active role of participating in an incubator or accelerator, negotiating investment agreements, etc., you are exposed to greater risk that your involvement would start to resemble “working” for your company as its CEO, regardless of whether you take any remuneration. Given this, someone who’s studying on an F-1 visa who wants to apply for an NIW based on a new startup idea would need to apply based on an entirely future-looking proposal that has not been significantly developed at the point of application.

Although it is possible to apply for an NIW with an entirely prospective business plan, practically it would be more difficult to convince the officer that your business plan is plausible if there is no evidence of progress, and also you would need to rely on your past experience (not related to your current startup) to satisfy the “well positioned” prong. For applicants who hasn’t had any previous entrepreneurial evidence, this would be difficult.

Working on Post-Completion OPT on Your Startup

If you’re on Post-Completion OPT, you may be able to get specific authorization to work on developing your start-up through your school’s DSO (Designated School Officer). Keep in mind that you should incorporate the business entity and work with your DSO to duly add your company as one of the authorized employers in your SEVIS record before starting work on this startup. Assuming this is properly set up, you would be allowed to actually work as your company’s CEO and take more active steps towards developing your startup, such as negotiating and signing client contracts, participating in incubators or accelerators, soliciting and receiving investment, applying for and receiving grants and awards, and attending industry conferences to present your business idea, all of which are excellent forms of evidence that can support an NIW case.

Keep in mind that all Post-Completion OPT requirements must be met, such as that all employers are properly registered through your DSO, work must be related to your degree, that you’re working at least 20 hours per week across all employers, that you stay under the maximum allowed days of unemployment, and all evidence of work performed must be properly documented.

Working on STEM OPT on Your Startup

You may also be able to make arrangements to obtain work authorization under STEM OPT to work on your startup, but this may be a little more difficult than is the case under Post-Completion OPT, because there are more specific rules that apply in the STEM OPT context. With careful planning this can be possible.

For example, any entity that serves as the STEM OPT employer must be enrolled in E-Verify and must have a bona fide employer-employee relationship with the STEM OPT holder, which a founder who has majority ownership would have difficulty with. Furthermore, there must be at least one other personnel that will supervise and provide “training” to the STEM OPT holder described in the I-983. Finally, each STEM OPT employment must be a paid position and involve at least 20 hours of work under each employer. As such, you would need to receive a salary from your startup. It is possible to have multiple STEM OPT employers, but each of them must independently meet the STEM OPT requirements (including the minimum 20 hours of paid work).

In some cases this can be a viable option. In other cases, changing to an E-2 or O-1 visa may be a more viable option, which is described in more detail below.

Changing to E-2 or O-1 Status to Obtain Work Authorization Before Filing the EB-2 NIW

Because of the restrictions detailed above on what activities you could pursue towards developing your start-up on F-1, OPT, or STEM OPT status, pursuing a change of status to a different non-immigrant status, such as E-2 or O-1 and obtaining that work authorization first can serve as a useful “bridge” that would allow you to build a stronger case for an NIW petition than trying to move directly from F-1 to NIW at a point where your idea has not seen any real development.

For example, an engineer who is currently working on F-1 CPT and has published academic journal articles, participated in peer reviews, and has accumulated a record of leading impactful projects at distinguished organizations may have a viable case to apply to change their status to O-1, using a new startup business as the employer/petitioner. Once the work authorization is secured, the applicant could take concrete steps towards developing the startup idea and accumulating evidence that would support the prospective impact argument for an NIW petition.

As another example, a student who has treaty country nationality could create the business entity and make an investment in their startup business, hire an employee, purchase equipment and business space, and apply for a change of status to E-2 to work on developing and directing that business. Once the work authorization is secured, the applicant can take more concrete steps to develop that business further and start accumulating the evidence that will support the impact argument for the NIW petition.

Plan Your F-1 to Green Card Strategy Before You Build

The order in which you secure work authorization and build startup evidence often determines whether an EB-2 NIW petition is viable. If you are an F-1 student or OPT holder weighing a startup-based NIW, please schedule a consultation to review your timeline before you take steps that could affect your status.