Co-authored with Sherwin Noorian, US immigration lawyer at TechVisa

Expanding into the US raises an obvious question for founders: do you actually need a visa to make it happen? The answer is more nuanced than most people expect – and getting it wrong, or leaving it too late, can slow down an otherwise well-planned expansion.

We put this piece together jointly. Standard Ledger sees the commercial and financial side of US expansion play out with founders every day, while Sherwin Noorian of TechVisa brings the immigration expertise. He’s the only dual-qualified, dual-citizen US and Australian immigration lawyer practising out of Australia, with thirteen years in US immigration law and close to ten of those spent working with Australian startups and ASX-listed companies sending people to the US. 

Between us, in this article we’re covering when founders actually need a visa, why many don’t need one straight away, the advantage Australians have through the E-3 visa, how the process works in practice, and the mistakes we see founders make most often.

Do you need a visa at all

Not every trip to the US requires a visa. Founders and executives can travel on the ESTA for visits of up to 90 days, which covers meetings, networking, and recruitment. Many companies operate this way in the early stages of expansion.

The shift usually happens once a founder needs an ongoing presence in the US – either to build and manage a local team, or to stay close to customers who expect that level of engagement. At that point, a visa becomes necessary – and the E-3 is almost always the starting point for Australian founders.

The E-3 visa: Australia’s advantage

The E-3 is available exclusively to Australian citizens (not permanent residents), and Sherwin describes it as generally the simplest, fastest, and most cost-effective option available. It’s a two-year visa, renewable indefinitely, and it works for founders, executives, and employees relocating to the US – or stepping into a newly created US-based role.

Applicants need a bachelor’s degree, or relevant work experience in its place (the rule of thumb is twelve years’ experience where there’s no degree), along with a salary that meets the required minimum for the role and location.

Timing is reasonably predictable too. Where a US entity is already in place, founders can typically expect the process to take less than two months, depending on consular interview availability – occasionally faster where emergency appointments are available.

How the process works

The E-3 process runs through the US consulate rather than through US Citizenship and Immigration Services, which keeps it comparatively quick and affordable compared with other visa categories.

Broadly, the steps are:

• Assess the proposed role and confirm the salary meets the required “prevailing wage” for that specific location – this is set at county or metropolitan level, not nationally, so it varies by city
• Prepare the required application forms for the applicant (and any accompanying family) alongside the employer-side paperwork, including a labor condition application and supporting letter
• Book the consular interview – available in Sydney, Melbourne, and Perth
• Complete an interview preparation session, since the consular interview is a largely verbal process rather than a documentation review
• Attend the interview and, once approved, travel to the US to begin work

Where founders trip up

There’s one requirement that catches out more founders than any other: genuine employment. To qualify for an E-3, an applicant’s role must be subject to the control of someone else – typically a board, or another director or executive with authority over the position. A founder who insists they can’t be fired by anyone is likely to be refused.

Sherwin has heard of instances where applicants have told the consular interviewer they couldn’t be fired because they were the founder, and were refused on the spot. As he puts it, this doesn’t mean control has to sit in the US – a global board, including one based in Australia, can satisfy the requirement, provided it genuinely exercises authority over the US role. This is an example, Sherwin says, of why a preparation session between the applicant and the lawyer is essential prior to an E-3 visa interview, something he conducts with all of his clients.

A few other points we’d both flag for founders:

• Payroll for the E-3 role must run through the US, not from Australia – though tenure with the Australian entity can still be maintained separately
• Some employer of record providers will claim a visa must run through their entity – Sherwin’s clear that this isn’t accurate, and it’s worth checking before committing to a structure
• Salary requirements are reviewed regularly and can shift, so it’s worth confirming current figures before finalising an offer

When the E-3 doesn’t fit

The E-3 won’t suit everyone. Younger founders without a degree or the required work experience, for example, often don’t meet the threshold, and there are other paths worth understanding.

The E-2 investor visa is available to a wider range of nationalities and requires a substantial investment in the US business, with the investor retaining control. For Australian citizens specifically, a significant issuance fee – currently over USD 5,500 per applicant – has made it a less attractive option since 2019, though it can still make sense in the right circumstances, particularly where a family’s total travel and renewal costs over a longer visa validity period offset the upfront fee.

Beyond that sit petition-based options like the L-1 (intra-company transfer) and O-1 (extraordinary ability), which route through US immigration authorities rather than a consulate directly. These tend to be slower, more expensive, and harder to qualify for – the O-1 in particular can be a difficult route for early-stage founders, however strong their credentials.

A structural consideration, not an afterthought

One point worth stressing from the Standard Ledger side: a founder relocating to the US on a visa while continuing to make executive decisions for the Australian entity can inadvertently create a taxable presence for that entity in the US. It’s an easy detail to overlook, particularly when day-to-day responsibilities don’t change much after the move – but it’s a reason to loop in tax advice alongside immigration planning, rather than treating the two as separate conversations.

Getting the timing right

The overarching theme, from both of our perspectives, is that visa planning works best as an early conversation, not a last-minute one. Founders who understand their options – and the pitfalls specific to their situation – tend to move through the process with far fewer surprises.

Disclaimer: This article is for general informational purposes only and does not constitute financial, legal or tax advice. Please speak with a qualified adviser (hey, that’s us!) before making decisions based on your specific circumstances.