Foreign founders make the same mistake with remarkable consistency. They incorporate a Delaware C Corporation, hire their first contractor, build the product, and only then ask an immigration attorney whether they were actually allowed to do any of that. By the time the question gets asked, the first dollar has already crossed into a personal account, and that moment, unremarkable as it seems, carries serious consequences for an entire immigration history.
Gokce Ergul, immigration attorney and Founder of Ergul & Toksoz LLP, has spent her career untangling exactly these situations. Her starting point is always the same. “Before you pick your corporate structure, before you open a bank account, before you onboard your first employee,” Ergul states, “talk to an immigration attorney, not just the startup attorney.”
Immigration and Business Structure Are the Same Decision
The mistake is not laziness. It is the assumption that immigration and corporate formation are sequential conversations rather than a single one. A company can be incorporated in minutes. The right immigration pathway for the founder behind it may take months to build correctly. When those timelines are out of sync, the founder is either working unlawfully or not working at all. Both outcomes are damaging at the fundraising stage.
The corporate structure chosen has direct immigration consequences that most founders do not anticipate. For founders pursuing U.S. venture capital, Ergul recommends a Delaware C Corp as the parent with the foreign entity as a wholly owned subsidiary. This structure enabled an L-1 intra-company transferee visa petition for a recent client. Without the qualifying relationship between entities built into the corporate structure from the start, the L-1 petition cannot be filed, or requires expensive restructuring and a waiting period before it can be. Intellectual property (IP) assignment carries the same weight. IP developed before forming the U.S. entity must be formally assigned to the new company because investors will look for it during due diligence, and its absence is far easier to prevent than to fix.
The O1A Is Now the First Conversation for Founders
The new $100,000 H-1B visa fee has accelerated a shift that was already underway. H-1B was never designed for founders. The employee-employer relationship requirement, the lottery, the wage requirements, and the dependency on a sponsoring entity make it a structurally poor fit for someone building their own company. The O-1A extraordinary ability visa differs in one critical respect: it rewards exactly what good founders do naturally. “A well-constructed O-1A petition tells the story of an extraordinary professional who is a startup owner or entrepreneur,” Ergul notes. “It is fundamentally different from satisfying the occupation framework under a traditional H-1B.”
Raising capital from known investors, receiving media coverage, speaking at conferences, and mentoring in the ecosystem build the O-1A petition and the business simultaneously. The visa strategy and the company-building strategy are the same strategy. That alignment is what makes the O-1A the opening topic in nearly every conversation Ergul now has with founders.
For founders watching the 2026 regulatory environment, three areas require attention. Consular processing has become increasingly unpredictable, depending on post and nationality, making departures from the U.S. on non-immigrant visas significantly riskier for founders with pending petitions. EB-1A (Employment-Based First Preference, Extraordinary Ability) and EB-2 NIW (Employment-Based Second Preference, National Interest Waiver) green card pathways have become more relevant but harder to obtain as requirements tighten. United States Citizenship and Immigration Services (USCIS) processing times and policy changes demand realistic planning horizons rather than optimistic ones. The window for building these pathways correctly is normally earlier than founders expect, and the cost of getting it wrong compounds quickly.
Follow Gokce Ergul on LinkedIn or visit Ergul & Toksoz LLP for more insights on immigration law, foreign founder legal strategy, and building the U.S. business presence that holds up under scrutiny.
