Author
Larry Nan
Managing Associate (SF)
You flew into SFO on an ESTA in March, stayed nine weeks, ran the raise, signed the lease on a WeWork desk, and started replying to US customer emails from a Palo Alto kitchen table. In June you came back and did it again. Nobody stopped you at the border either time.
Then your immigration lawyer asks, during the O-1A prep, how much time you have spent in the US in the last 18 months and what you were doing there. The honest answer is the one that creates the problem, because a pattern of long visits doing operational work is exactly what a consular officer looks for when deciding whether your visitor status was being used as a work permit.
This is the most common unforced error we see with European founders, and it is expensive precisely because it costs nothing at the time.
The visitor categories are narrower than founders assume
The visa waiver programme (ESTA) and the B-1 business visitor visa both let you enter the US for business activity. Business activity is a defined and fairly short list. It is built around the idea that you are here temporarily, on behalf of a business whose centre of gravity and payroll sit abroad.
Broadly, activity that fits the visitor concept looks like:
Attending meetings, conferences and trade shows
Negotiating contracts and taking sales meetings
Consulting with business associates
Doing market research and looking at office space
Meeting investors and pitching
Activity that does not fit looks like:
Performing the day to day work of a US company, including building product for US customers
Managing US employees on an ongoing basis
Drawing a salary from a US entity
Being the person who delivers the service the US company is paid for
The test that matters is not where you are sitting. It is the source of the benefit and the payment. If a US entity is getting your labour and paying for it, that is the shape of work, whether or not you are physically in an office.
Incorporating is fine. Running it is where the line is.
A point that surprises almost everyone: you are allowed to own a US company and you are allowed to form one, whatever your immigration status. Ownership is not employment. You can be the sole shareholder of a Delaware C corp from Prague and never set foot in the country.
What you cannot do is perform the ongoing work of that company inside the US without status that permits it. This is why the sequencing question (entity first, or visa first) is not academic. If you incorporate in month one and then spend months two through eight running the company from San Francisco on a visitor status, you have built a record that is hard to explain later.
If you have not chosen a route yet, our guide to the US visa options open to foreign founders sets out the realistic paths (O-1A, E-2, L-1, H-1B and the rest) and what each one actually asks of you.
The four ways this shows up later
Founders rarely get caught in the moment. They get caught at one of these four points.
The visa petition. Your O-1A or E-2 filing asks what you have been doing. Prior periods of unauthorised work can lead to a denial, and a denial is now part of your permanent record on every future application.
Re entry. Border officers can see your travel history. A pattern of long stays with short gaps invites secondary inspection, and refusal of entry is a decision made in minutes, at the airport, with no appeal that helps you that day.
Diligence. Investors in a priced round ask about founder immigration status, because a founder who cannot legally be in the US is a real risk to the plan they are funding.
Payroll. The moment your US entity puts you on payroll, the position is documented. This is where a paperwork problem becomes a visible one.
What to do instead
None of this means staying out of the US. It means being deliberate about three things.
Keep the visitor visits looking like visitor visits. Short, purposeful, with a clear reason to return home. Keep the ties abroad real: your home, your foreign company, your foreign payroll.
Stay on the foreign payroll until you have status. If a Czech or Slovak entity employs you and pays you, and the US entity is a young subsidiary with no operations yet, the picture is coherent. Once you flip that, the picture changes.
Start the visa work earlier than feels necessary. O-1A evidence takes months to assemble because it depends on press, awards, memberships and letters you have to go and get. E-2 depends on a real, active investment. Neither is a thing you begin when you have already been in the country for five months.
Write down the plan. A one page note that says who is employed by which entity, where they are, and what status they hold, saves you an unpleasant afternoon two years from now.
The next action
Open your passport and your ESTA record and add up days spent in the US over the last 24 months, and what you were doing on each trip. If the total surprises you, that is the signal to get the status question resolved before your next trip, not after it.
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