Here is another edit from “Dear Sophie,” the advice column that answers immigration-related questions about working at tech companies.
“Your questions are vital to the dissemination of knowledge that empowers people around the world to rise beyond borders and pursue their dreams,” says Silicon Valley immigration attorney Sophie Alcorn. “Whether you’re in people operations, founding, or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”
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I am an entrepreneur in Guatemala and would like to come to the United States to expand my technology business.
What’s the best way to do this?
— Revolutionary Guatemalan
What fantastic news that you are looking to tackle the US market. In a recent podcast (which has actually been trending in your country for the past few weeks!), I discussed my views on the best way to establish a startup for successful immigration. Whether a founder wants to go to the US – or if they’re already here and want to start their own business – we’ve discussed the details. There are even options for newly established businesses with limited funding.
It is important to know your options when setting up your business in the United States. This knowledge allows your company to successfully sponsor you, your founding team and other potential recruits for visas and green cards if needed – potential investors will also feel more comfortable investing in your company . Super important, right?! Before delving deeper into your plans, I recommend that you consult with both a corporate lawyer and an immigration lawyer to help you with the process.
LLC v Delaware C-corp
One of the first decisions you will need to make is how to structure your business in the United States. A business or corporate lawyer can help you make this decision. In general, corporations and LLCs can sponsor individuals for a US visa or green card.
What I generally see in the startup ecosystem is that most VCs prefer to invest in a Delaware-based C-corporation (Delaware C-corp). This is primarily because Delaware laws protect investors and Delaware C-corps can distribute two or more classes of stock and stock options to employees, investors, and board members.
There are no US residency or citizenship requirements to create a Delaware C-corp, and it can be done in a day. For more on this topic, listen to my conversation on startup law with my good friend and trusted colleague Lindsey Mignano, founding partner of Smith Shapourian Mignano, a San Francisco-based corporate law firm that focuses on startups.
Also talk to your business lawyer about the ownership structure of these entities. For example, one possibility is that your Guatemalan company owns your US-based company. However, most investors prefer to invest in a parent company based in the United States, so you may want to consider setting up your US company to own your business in Guatemala. However, if you have already distributed shares in your business in Guatemala, this could be a tedious process that might best wait until you are ready for a funding round. Then you could do what’s called a Delaware rollover – and you should definitely ask your attorney to advise you on this.