The success of an Irish tech firm entering the US is subject to a chicken and egg situation of the highest order. In a land where networking goes well beyond “the few pints” after work, taking a half-assed, long-distance approach isn’t an option.
Irish companies need to have as much physical presence in whichever region suits their industry needs, be it New York City, Austin, Texas or Silicon Valley.
Go big or go home
Networking is often the primary focus for those entering the US early on. The chance to bump into
Marc Andreessen
or
Ben Horowitz
in a coffee shop in Silicon Valley and convince them to invest in your fledgling firm is beyond likely. But it’s more likely to happen there than in Abrakebabra on Patrick St in Cork.
"The biggest mistake any Irish startup can make is not coming to the US," says Andrew Mullaney, chief technical officer of Irish Social Content Discovery Platform, NewsWhip. "If you're in tech, you need to go to the US in order to succeed. It's that simple."
When a new company gets an indication, be it real or perceived, that its technology has commercial potential, it’s only natural that the US market moves from pipedream to possibility.
But if said start-up has a staff of five or six, all of who work out of one tiny office in Dublin, it may be more realistic to plan a day trip to Captain America's on Grafton Street.
Do the right thing
This leads to one of the great universal dilemmas: choosing between the official, legal and ethically-correct approach to life’s complications (which is usually slower and more costly), and the “cute hoor” approach, where corners are cut and laws are broken in the hope no one notices and sure if they do, you’ll somehow be exonerated from any wrong doing because of your accent.
The cute hoor approach has its advantages. "By the time we officially launch in the US later this year, it'll have taken two years for us just to get to the start," says Kevin Holler, chief executive of tech graduate recruiter, Shake.
But as many an Irish politician will testify, cute hoorism has a way of coming back to haunt you.
“The vast majority of Irish start-ups we meet in the US are unsure about the status of their visas and overall legality of their activity generally,” says Holler. “Most people arrive with the intention of getting their business done while flying under the radar. But the restrictions on those travelling on an incorrect visa make it difficult to conduct business effectively. Even if progress is made, eventually most companies will need to use official channels and the last thing you want at that point is for immigration to look back over your records and find something that raises questions over your legal status.”
Let my people go! American borders are strict, secure and far from simple for any non-US citizen to pass through easily.
There are more options than most would be aware of though. For example, the ESTA 90-day visa waiver programme – that many Irish holidaymakers will be familiar with – can also be used for business purposes, with some notable restrictions. An Irish company can enter US soil to conduct meetings, fact-finding missions or network, so long as it is not earning income while on the trip and can prove it will return to Ireland.
“People often don’t realise they need to educate themselves and not just wing it,” explains US immigration lawyer and business visa expert, Deirdre O’Brien. “If you know what you’re permitted to do you can travel with confidence and plan for the bigger picture. In one instance we got a call from a reputable company who were in trouble when one of their top employees lied to an immigration official, saying he was going on holidays. The officer asked to see his mobile phone and there were dozens of messages from well-wishers congratulating him on his new job in the US. The irony is that as a business visitor he was eligible to engage in the planned activities. He just didn’t know it and lied unnecessarily.”
Lying to an immigration official is fraud and can result in a lifetime ban on entering the US. “Knowledge is power,” she adds. “For those with a criminal conviction or a prior overstay, for example, the situation is usually salvageable. The potential consequences of committing fraud are so dire that, aside from obvious ethical considerations, it’s just never worth the risk.”
Working hard or hardly working?
Once in the US, the biggest issue is survival. Many early startups might plan to come over for the entirety of the visa waiver, in which case one needs to factor in living expenses for three months. No income can be legally earned either in the US or back home.
“I know someone who was kicked out of the country for volunteering on a tourist visa,” explains Mullaney of NewsWhip. “It was considered a form of ‘work’.”
What constitutes paid work is a legal gray area of the US immigration system. “It can be a difficult concept to grasp,” says O’Brien.
“The case law with respect is conflicting with seemingly similar fact patterns resulting in different decisions. Common sense should prevail though and people usually know when they’re pushing it. Entries that are plainly temporary and incidental to the person’s employment abroad point towards allowable activity. Running a business, however, does not.”
It's worth noting that an employee of a company has more freedom than a principal when it comes to soliciting business. "Foreign employers are often pleasantly surprised to find that it's permissible to send their employees from abroad to the US to provide after-sales service (pursuant to contract) or training to a US customer or to scope out the nature of a US project before working on it back in the home country," says O'Brien. Top tips for the US: Stress-free business travel US Immigration lawyer and business visa expert Deirdre O'Brien on some simple guidelines to help make business travel to the US a little more stress free:
1 Have the right information and documentation with you.
2 Know your spiel, stay on-message and travel with confidence.
3 Keep your trips short and sweet. If that is not possible, explore all visa options open to business travellers before you’re denied entry. 4 Don’t move to the US before you have a work visa. It’s not unheard of for people to actually sell their house, car, etc and move the entire family to the US without visas.
5 Don’t send employees to work in the US without visas. This can backfire big-time, not only by alienating employees when the door is slammed shut but you can also lose valuable US contracts and consequently investors.
6 Seek advice about your options so you’re ready to hit the ground running when the time is right.
