7

Operational issues

There are some great sources of information available online which can help you navigate specific operational topics around US expansion. We want to provide an overview and summary here, focusing on issues which have come up repeatedly in our experience, offering as clear and simple guidance as possible. However, we are not lawyers or tax advisors, and you should always speak to a professional before you act; regulations and best practices are constantly changing, and your specific situation may be different.

Professional advisors

Business culture in the US leverages professional service providers much more than in Europe. You should identify experienced advisors familiar with supporting European VC-backed companies. You will need multiple providers in order to set up in the US. One of these advisers - usually your lawyer - will become your point person in case of any questions.

  • Lawyer
  • Immigration specialist
  • Tax accountant
  • Outsourced HR and benefits
  • Bank
  • Insurance provider

Your CFO will usually take responsibility for operational issues around expansion. Alternatively, it could be your COO, or Operations lead. Your Head of People may handle the HR and benefits setup.

Once you have chosen advisors, everything can get completed in roughly 4-5 weeks, with the important exception of immigration, which will be more like 4-6 months.

Visas

August 2020: Following Covid-19, the US has suspended visa services worldwide since March. There is also a temporary freeze on H1-B and L-1 visas. It is unclear when these restrictions will be lifted.

Visa applications for relocating staff - either founders or employees - are the most common bottleneck holding up US expansion. The time to approval is unpredictable, but generally 4-6 months, so it is crucial to plan ahead. Immigration is a highly-politicised topic, with constantly-shifting rules and restrictions so you need to explore your options carefully.

In the exploratory phase, when travelling to the US, most companies use the ESTA visa waiver programme. But be careful not to violate any conditions. You must be travelling for valid business reasons, which includes office set up.

The Visa Waiver Program allows people to travel for business or tourism for 90 days per visit. There is no limitation in the number of visits per year but keep in mind that if the person spends too much time in the US it will likely lead to denied entry at some point.

Paul Samartin

Samartin & Friends

Once you or a team member are ready to actually relocate, it is time to work with an immigration specialist to assess the best visa route. Where you are incorporated does not matter for immigration. It is your own nationality that determines which visas you are eligible to apply for, and how long your visa may be valid.

Your immigration specialist should help you assess the likelihood of getting an acceptance for each proposed member of your landing team. There may be more burden of proof for less-experienced hires. You will need to make the case for each employee - for example, drawing on their title, salary, position in your org chart, and uniqueness of their specialised skills.

There are five US work visa routes you may use. But most startups go for E-1, E-2 or L-1 visas.

The E-1 and E-2 treaty visas should be the first option that start-ups should consider. They were designed to encourage investment and trade with the US, so they are generally reviewed more favourably. They are usually also issued for a longer term and give the holder more flexibility, plus options for indefinite extensions.

Diana Okoeva

Clintons

Visa Category Comment How does it work?

E-1

Treaty Traders

Often overlooked visa category. Good for startups that qualify

  • 50% of the company must be owned by nationals sharing same nationality as the principal applicant
  • 50% of the company’s international trade must be with the US
  • Processed by the local US embassy (rather than USCIS) which can often speed up the process
  • Need to be a national of a country with which the US has a treaty
  • Available to principal owners, executives, managers or those essential for the US roles (but must share nationality with the principal applicant)
  • Visas can be up to 5 years and extended indefinitely
  • Spouses can apply for derivative visas and US work authorization

E-2

Treaty Investor

Most popular startup visa category

  • As per E-1, except:
  • Must demonstrate significant investment into the US entity
    (versus 50% international trade with the US)

L-1

Intracompany Transferee

Next best option after E categories

  • Available for executives, managers or employees with specialized knowledge (higher threshold than for the E-1/E-2 visas) who have worked at the company for at least one year
  • Initial petitions can be approved for up to 3 years and can be extended in 2 or 3 year increments
  • Maximum limit of 7 years for executives/managers or 5 years for employees with specialized knowledge. (If they leave the US for a year, can apply for another term)
  • Spouses can apply for derivative visas and US work authorization

H-1B

Person in Specialty Occupation

Unpredictable visa category

  • Capped, and awarded via an annual lottery. Approximately 40% success rate (rising to 65% for applicants with postgraduate qualifications)
  • Registrations must be completed in March and if approved, the individual can start working in October
  • For years, spouses of H-1B visa holders were not allowed to work. Since 2015, there have been some exceptions, however this is currently being challenged in court

O

Persons with extraordinary ability or achievement

Could be a route for founders who have raised large rounds, whose companies are doing well, and who have significant press

Could not be used to send multiple team members

  • Must demonstrate a record of extraordinary ability or achievement, showing that the individual has risen to the top of their field, and is one of a small percentage to have done so

Note: Visa types that have been suspended as of July 2020 are greyed out in this table

Visa applications require extensive documentation. Common to all the routes listed above, you will be asked for:

  • Articles of Incorporation
  • Documents confirming ownership
  • Companies House AR01 Report (if in the UK, else national equivalent)
  • A detailed breakdown, or spreadsheet, of all funds invested into the US venture
  • Evidence of your investment in the US business including signed leases, evidence of IP and evidence of spending and payments to set up the business
  • Evidence that the business is real and active, including state and federal licenses, evidence of ongoing work and marketing materials
  • Business plan with a five year profit and loss forecast for the business, including assumptions and a breakdown of start-up costs necessary for the business to become operational

Applying for a Green Card

None of the visa routes above automatically lead to Green Cards or US permanent residency. If you intend to apply for Green Cards, you will need to explore the options well in advance. Founders on E visas can hit problems at the point of sale of their companies when they have not planned ahead.

Immigration Specialists

Given the complexities of the US immigration system, it is advisable to work with a specialist lawyer, rather than the immigration department of your corporate law firm. In the UK, the following are highly-regarded US immigration lawyers:

Diana Okoeva, Clintons (also works with non-UK visa applicants)

Paul Samartin, Samartin & Friends

Elizabeth Jamae, Pearl Law Group

The advisory costs for visa applications are approximately £7-10k for the first applicant, plus £5k per additional applicant.

Lawyer up

A major difference between US and European business culture is the importance of legal counsel. The threat of litigation is higher, and there are more employment regulations (at both the federal and state levels) which could result in discrimination lawsuits.

You should establish a primary relationship with a full-service law firm. Your corporate lawyer there will be able to pull in specialists from other practice areas - employment, equity, commercial, IP, data, etc. Your lawyers can help Americanise your commercial contracts, apply for trademarks and patents, and evaluate data residency, privacy, and regulatory requirements. If you have worked with a smaller local law firm at seed, it may make sense to uplevel your law firm to one with international reach after Series A, or at the point of US expansion.

The US has a stronger litigation culture and the costs for legal advice are much higher – For example you can expect 2x the rates vs the UK, for a partner at a respectable firm.

Joshua Jian

Head of Corporate Development, Credit Benchmark

You should consider a firm which is familiar with the needs of VC-backed tech startups. Ideally, one that operates in both the US and your European home market. These may include:

  • Wilson Sonsini Goodrich & Rosati (WSGR)
  • Cooley
  • Goodwin
  • Latham & Watkins
  • Morrison & Foerster
  • Orrick

Initial setup for US operations might cost $10k. A basic SaaS setup could be as little as $3-5k:

  • Subsidiary set up $1-2k
  • Employment contracts $0.5-1k
  • Stock option plan $2-4k
  • Americanize commercial contracts $1-7k
  • Trademark filing $1-3k
  • Patent filing $8-20k
  • Data Privacy – variable; a simple SaaS set up could be $1k, but something bespoke in a regulated sector (e.g. digital health) could go up to $50k

The Delaware flip

You will need to set up a US company in order to hire your first US employee. Most companies establish a C-Corp in Delaware.

Your C-Corp could be a wholly-owned subsidiary of your European topco. Alternatively, you may choose to adopt your US C-Corp as your topco. This is commonly referred to as ‘flipping’. You will need to assess the pros and cons of flipping, and the timing for doing so, with your specialist advisors. Having a US topco used to be a requirement of US investors (e.g. Y Combinator), and can be a signal of your ambition, but there are arguments for not rushing to flip immediately. In fact, our analysis of 31 of the outlier European successes and case studies referenced in this book revealed that only 29% (9 companies) flipped to the US.

There is a stronger logic for flipping to a US topco if you are a Compass archetype, since this playbook implies a majority of your customers, employees and leadership will end up being based in the US. It also makes it more likely that you will have US investors and an eventual US exit (listing or M&A). For the Anchor and Telescope archetype, the advantages of flipping are less obvious.

We have been advised that we’ll need a minimum of 2 years with a US topco in order to IPO there, so it’s on our timetable.

Pedro Bados

CEO & co-founder, Nexthink

Explore the tax implications (for example your qualification for SEIS and EIS investment in the UK), and the impact of issuing tax-advantaged options to US employees. In certain countries, notably Germany, flipping is treated as a liquidity event with tax consequences; so if you are going to do it, you should do it before you raise any capital.

Unless you have specific tax or governance issues, or want to attract solely US investors early on, there may not be an advantage to having a US topco.

Rini Banerjee

Index Ventures

You should consider how potential investors may perceive a company from your jurisdiction when making topco decisions.

André Dubois

Index Ventures

Bear in mind that if you are based in Europe, but with a US legal structure, corporate processes (eg fundraising) may be held up due to timezone challenges, and your familiarity with laws and requirements.

The legal and tax rules change from time to time and there are macro forces at play beyond your control, so you can’t engineer this too closely.

Rini Banerjee

Index Ventures

Tax structure

After creating your US subsidiary, you will need a tax registration EIN (Employer Identification Number). This will typically take 10 business days, and is required in order to open a US bank account and run US payroll.

You will need a transfer pricing policy from day one, although in the early stages, this is simply a document justifying your approach. Once you reach global revenues of $30-40m, you will need a more extensive policy-designed memorandum.

Sales taxes are administered on a state-by-state basis. SaaS services are considered by 50% of states to be a tangible good, so are liable for sales tax. You need to work with tax accountants to understand the thresholds, and your liability, to make sure you bill clients correctly, and don’t become liable for back-taxes later on. Typically, if you have no presence (employees) in a state and under $100k in turnover, you will not need to pay. However after the Wayfair ruling of 2018, there is precedent for a state to tax a company, even if it does not have a physical presence there.

The cost of advice and set up around transfer pricing and sales taxes will vary, but Frazier & Deeter provide a package for around $7k.

Founder taxes & compensation

Moving to the US can have major tax ramifications for you as a founder, which you need to address with a specialist advisor in advance.

The obvious one is that you will have to file dual tax returns, and look into tax treaties between your home country and the US to see where tax is owed. Most European countries have a dual-tax treaty with the US, making this somewhat simpler.

Founders may also be liable for higher taxes in the US on any equity sale, due to differences in capital gains treatment.

More challenging, although it is less likely to be an issue for founders before Series C, is exploring the tax implications of option grants. We have seen instances where growth shares (often used in the UK, Sweden and elsewhere) are considered to be RSUs in the US, and therefore liable for income tax as they vest.

When you move from the UK, you can get hit in two ways - first, entrepreneurs' relief in the UK is 10%, which is much lower than US capital gains. Second, if your shares are treated as RSUs, you may have a large tax bill the moment you relocate to the US.

Dominic Jacquesson

Index Ventures

It is important to uncover any significant tax issues early, so that there can be a sensible conversation with the board, if a founder or other employee is going to be adversely impacted by going to the US.

Moving is personally challenging, particularly if you have a family. It should be as positive an experience as possible. It may be necessary to increase salary if the founder is relocating, especially to NY or SF, given their high cost-of-living. If the move is later in the journey (Series B+), you could also explore a secondary sale of founder equity, to provide capital for a property purchase, or to alleviate personal risk more generally.

Make sure your partner and family feel good about moving. Over-invest to ensure that your quality of life stays at least the same, even if this means extra expense. Your board should be supportive on this.

Pedro Bados

CEO & co-founder, Nexthink

Tax treatment for shares or options - US versus selection of European countries

US

Capital gains could be as high as 40%
20% federal + state (11% in CA, 8-9% in NY, MA)
Some states have an extra tax for high income thresholds

France

Gains subject to special taxation rates (19% if the employee’s tenure has been more than three years at the date of sale, else 30%) plus social tax (15.5%)

Germany

Taxed as income (14–45%), plus social security contributions (around 20%). Also solidarity surcharge (equivalent to 5.5% of income tax) and church tax (equivalent to 8–9% of income tax)

Ireland

33%

Netherlands

Gains on exercise subject to income tax (8.9–52%)

Switzerland

No capital gains tax

UK

20% (often 10% through Entrepreneurs Relief)

Banking

If you are based in the UK, we recommend banking with Silicon Valley Bank (SVB). This will make life easier when you expand to the US, since you can then retain a single banking partner, with unified online access and reporting. If you are based elsewhere in Europe, where SVB does not currently have a license to operate, you will probably be better-served by working with separate local banks.

Compensation & stock options

Prospective US employees will expect to receive stock options, and will be more sophisticated in the questions they ask about your plan. It is recommended that you set up a US stock option sub-plan, so that you can grant tax-favourable ISO’s (Incentive Stock Options). To operate a US sub-plan, you will need to get a 409a valuation every six months, which sets the Fair Market Valuation for your option strike price. Depending on your stage of growth and your capital structure, this can typically be 50-80% below your last-round valuation, making stock options much more attractive to employees. 409a valuations are fairly straightforward to process, cost $2-5k, and are offered by many providers, including SVB and Fast409a.

While moving employees to the US, be aware that your strike price for options may need to be re-calibrated with a US 409A valuation. For example, if they hold UK EMI options with a more heavily discounted strike price, they will otherwise be liable for additional income tax when it comes to filing their US taxes.

One mistake we made was not getting a US 409a valuation, and not issuing options out of a US plan. This became a major problem down the line.

Anonymous European founder

For deeper insight into stock options, we refer you to the Index Ventures handbook Rewarding Talent, and to the section on US stock optionsin particular.

Payroll, HR & benefits

Most startups use a PEO (Professional Employer Organisation) to manage their employee payroll and benefits, at least until they reach 100+ headcount. PEOs operate a co-employment model; they pay the employee, and then bill the company. There is shared employer liability, and the PEO handles compliance with all filings, health & safety regulations, etc. The PEO model doesn’t affect stock option grants. The PEO will also look after the provision of US health and pension benefits, which are complex and unfamiliar ground for Europeans. PEOs leverage their group-buying power to negotiate with benefits providers, reducing costs for clients. Another benefit is that the PEO will take on the burden of registering offices and/or employees with state-level departments. This allows for simpler management of a remote workforce throughout the US, which is becoming more commonplace now, of course.

PEO service proposition:

  • Payroll (including time tracking for hourly workers)
  • Employee tax and regulatory filings (state and federal level)
  • Health (medical, dental, optical)
  • 401(k) pension plan
  • Life insurance
  • HR advisory

Health benefits in particular are expensive, and come in many different flavours. Employees will pay careful attention to health plans. If you’re hiring experienced team members, you’ll be expected to offer a policy covering family members too. Depending on the plan (in particular, which hospitals are included, and the level of employee-deductible towards any claim), health insurance can cost between $150-$1,500 per employee per month, depending on the level of coverage offered, and whether the employee requires insurance for themselves or a family. By law, employers must cover at least 50% of the lowest cost plan offered to employees.

Pension plans in the US are referred to as 401(k) plans. Companies must offer these plans. Employees make contributions which are deducted from payroll pre-tax, and the company administers this transfer of funds. Companies can choose to contribute to an employee’s 401(k). However, this usually occurs later in a company’s lifecycle due to the cost. It is a way, however, to offer a competitive benefits package and could contribute to a positive employer brand when competing for talent.

Other benefits may be bundled into offerings from some PEOs and are becoming more common, as a way of enhancing your employer value proposition. For example:

  • Online or telehealth appointments for primary care or speciality services
  • Mental health services
  • Fitness and gym access
  • Fertility, adoption, and pre-natal services
  • Ancillary insurances, like disability or life cover
  • 1-1 guidance for both employers and employees directly, to lighten the legal and HR burden

Index Ventures is invested in one of the leading PEOs in the US, Justworks, which is particularly focused on the needs of startups, and the expectations of tech employees. They have a modern online platform for both employees and company administration, and a wide range of bundled benefits. Their Plus-Plan (which includes the provision of payroll, all filings, plus the full range of benefits) currently costs $89 per employee per month.

It’s important to have a competitive benefits package to enhance your employer brand when you enter the US market. Offering a great health plan, contributions to 401(k) plans, and extras like telehealth and wellbeing services, will help you attract talent. They also signal your intent to invest for long-term US success.

Camilla Velasquez

SVP of Product Strategy and Marketing, Justworks

In the early days, using outsourced support from accounting firms + payroll processing firms, and subsequently PEO for running benefits, salaries and other HR related admin was very effective from a time and cost perspective.

Joshua Jian

Head of Corporate Development, Credit Benchmark

Property

You will probably operate from a co-working space when you first land in the US. Not only does this offer flexibility, but you will need a US office address to apply for visas in advance of having anyone on-the-ground. However, once you have more than five people in the US, it is worth considering leasing your own office space, despite the additional cost and unused space. A permanent space can be fitted-out to reflect your culture, and to a spec which matches your European HQ. It signals your commitment to the US, which will be noted by prospective hires, customers, and partners, as well as by employees.

Scaling up
9