Foreign entrepreneurs and professionals often approach our firm wanting to know what their options are when it comes to starting a business in the United States. While each scenario is different, there are a number of viable visa options made available by the U.S. government. In this post we’ll explore which pathways may be appropriate to start or expand an enterprise in the country including business visitor visas, treaty investor visa, intracompany transferee, and more.
Nonimmigrant Business Visa Options
To begin, a nonimmigrant visa is one issued to individuals who maintain a permanent residence in their home country but wish to enter the United States for the purpose of business, temporary work, or even education. Individuals usually think the B-1 Business Visitor Visa, is the most suitable option for a person wishing to start a business in the U.S. simply because of the name. Unfortunately, this is a widespread misconception.
The B-1 visa is actually more intended for those who intend to stay in the U.S for a limited period (less than 6 months but extensions are possible). A good way to evaluate whether this is the right visa for you is to carefully look at which activities are permitted under B-1 visa. If you can honestly say that your intentions fall under these categories and can provide sufficient evidence, a B-1 visa may be the answer.
Activities permitted include:
- Conducting or facilitating negotiations
- Planning meetings, investments, or purchases
- Carrying out research, conducting interviews, or hiring staff
- Looking for office space, negotiating a lease
- Purchasing goods or materials related to the business
The visa may be issued up to 10 years but each individual entry period is six months (with the possibility to file for an extension up to 12 months). You must also be able to provide documentation that you have adequate funds to cover all expenses while residing in the United States.
Disadvantages of B-1 Visa
- Not as flexible as other visa options
- Not intended for long-term activity (more than 6 months to one year)
- Not applicable to individuals looking to perform labor in the U.S.
Do you currently have an established business in your country?
If you do, consider L-1, E-1, E-2 or EB-5 visa options. See below for additional details and click here for the complete Entrepreneur Visa Guide.
L-1 Intracompany Transferee
An L-1 Intra-Company Transferee Visa is for individuals who work for a multinational company as high level executives, managers or other specialized employees. This visa is sought when the company needs to transfer these individuals back and forth from the U.S. to the foreign country.
On of the greatest advantages of this visa is that spouses and dependents of the L-1 visa holder may receive an L-2 visa which permits them to work in the country during their period of stay. Additionally, an employer can file a blanket petition to cover multiple L-1 visas at the same time.
Types of L-1 Visas
- L-1A visas are for managers and executives (or any other high level personnel who have supervisory functions)
- L-1B visas are for other employees within the multinational company who possess specialized knowledge of the organizations process, equipment, etc.
The L-1A is the most relevant one to this post, as it allows managers and executives to start a new branch or office of the company in the U.S. In this case, the visa will only be issued for an initial period of one year instead of the typical three. The USCIS will re-evaluate your case after the new branch or office has been in operation.
If you think an L-1 Intracompany Transferee visa may be applicable to you, contact an immigration attorney.
E Visa Options Overview
There are three separate types of E visas (E-1, E-2, and EB-5). An EB-1 Treaty Traders Visa is the most ideal for foreign professionals, managers, and investors from a treaty nation company who wish entry in the U.S. to either:
- Engage in a trade between the U.S. and a foreign enterprise
- Oversee a sizeable investment in the U.S.
The term trade in this case is defined as the international exchange of goods, services and technology.
Companies in treaty countries who would like to send their high-level personnel to the U.S. in order to set up a company may find the E-1 to be an appropriate means. While there is no specific dollar amount that constitutes a trader on E-1 visa status, at least 50% (or more) of trading activity should take place in the United States.
The benefits of an E-1 visa are that you can travel to and from the U.S. freely, you can have unlimited two year extensions while you maintain status and your dependents are permitted in the country with you while you have E-1 status. What’s more, your spouse can be lawfully employed.
Alternatively, if you are an investor looking to advance or begin a U.S. enterprise, then the E-2 visa may be more your speed. Like the E-1 visa, the USCIS does not give a dollar amount to the investment that must be made. It only stipulates that the investment must be substantial. For the most part, the rule of thumb is that the more valuable the enterprise, the smaller the percentage of the total value your investment can be.
For example, if the enterprise is worth $5 million, then you may only be responsible for $500,000, or 10%, of the total value. However, if your enterprise is worth $150,000, you may be responsible for a significant portion, if not all, of that amount.
Like the E-1 visa, you will be able to renew your visa indefinitely under E-2 status and your spouse and dependents can join you under your status.
Applying for an E-1 and E-2 visa is a nearly identical experience. Applications for both are submitted to the U.S. Embassy or Consulate with proper jurisdiction. The difference would be in the amount and type of supporting documents submitted.
EB-5 Investor Green Card
Up until now, we have covered nonimmigrant visas that are designed to grant the holder a limited amount of time to work in the U.S. Immigrant visas (green cards), however, are long-term and grant the holder legal permanent residency in the U.S.
EB-5 visas require the investor to contribute between $500,000 to $1,000,000 in a commercial enterprise (a $500,000 investment is required for those located in a rural or high unemployment area). These areas can be defined as experiencing minimum unemployment of 150% of the national avg. The money can be obtained through a multitude of means including inheritance, a gift, or other legitimate ways.
Each year, there are 10,000 EB-5 visas made available. From those available annually, 5,000 are separated for individuals who file an application under the pilot program through a CIS-designated Regional Center.
According to USCIS, a commercial enterprise includes (but is not limited to):
- Sole proprietorship
- Holding company
- Joint venture
- Business trust
*A new commercial enterprise must have been established after Nov. 1990.
Due to past misuse, the USCIS is very particular about who is issued this visa status. As it currently stands, the law does not restrict applicants from certain countries. After being approved this status, dependents under 21 and spouses may also receive green cards as accompanying relatives.
In summary the EB-5 visa requires a capital investment of $1,000,000 or $500,000 for a TEA (high unemployment/rural area), the investment should be for a U.S. commercial enterprise (for-profit), and it must create 10 full time jobs.
You may be wondering how the H-1B makes this list of visas that allow foreigners to start businesses in the U.S. Those that know the requirements and limitations of the H-1B might scratch their heads at how starting a business would work. This is because you must have a sponsoring employer to qualify, no exceptions. Because you cannot self-petition and a valid employer-employee relationship must exist, starting your own business seems like it would be impossible, but there are ways around this rule.
In the past, it was widely understood that you could start a business under H-1B status as long as you didn’t work for that business. While it more or less defeated the purpose of starting a business in the first place, it did mean that it wasn’t an impossible feat. In 2010, however, a memorandum was released clarifying the rules surrounding starting a business under H-1B status.
Now, it is understood that you can start a business as long as you are not the sole proprietor and you are not your own petitioner. This means that, if you establish an entity with the power to control your employment, you can effectively build a startup business under H-1B status. This entity could be something like a board of directors or a CEO who can sponsor you, pay your wages, and even retain the ability to fire you.
One thing to keep in mind as you work on your startup in the U.S. is that the USCIS and Department of Labor are constantly striving to protect U.S. jobs and the workforce. One great way to make your case stronger with these federal entities is to hire U.S. workers as soon as possible. This is especially true for the L-1A visa when starting a new branch or office. Many executives and managers attempt to staff the new office with other L-1 holders from the company, but this can look bad when you request an extension after your first year. By hiring U.S. workers, you show the USCIS that the decision to grant you a visa to start a business in the country helped the American workforce.
How Our Employment Immigration Attorneys Can Help
Starting a business in the U.S. as a foreigner can be problematic if the appropriate steps are not taken in advance. Your visa, just like your business, represents a significant investment of time, effort, and money. The best way to protect that investment is to have an expert handle your case from start to finish.
Our lawyers have extensive experience handling employment based immigration cases. We can help you determine which course of action is best for your situation including any documentation necessary.
At SGM Law Group, we thoroughly evaluate each case that come through the door to ensure receives the utmost attention and care. To have our attorneys help you with your entrepreneurial case, fill out our contact form and schedule your consultation today!