USA Immigration Rules: Why Entrepreneurs Stand a Chance

entrepreneur celebratingThese are exciting times for entrepreneurs, and there should also be great opportunities for foreign entrepreneurs in the United States.  This is because enterprise founders really do have a series of legitimate immigration options at their disposal, notwithstanding the common (and wholly understandable) sentiment that the path to visa/green card sponsorship is laden with pitfalls, booby traps, and land mines.

Pending the (extremely) long-awaited creation of a “startup visa,” the following is a list of options that actually exist and have been implemented successfully by entrepreneurs in the very recent past:

Yes – you can use the H-1B! – Keep in mind that at a high level, the H-1B visa merely requires that an employee have the equivalent of a bachelor’s degree, and that he or she be sponsored by a U.S. company for a job that is complex enough to require a bachelor’s degree. There is nothing in that rule that excludes its application to company founders, who are also salaried employees for the companies they form.

Of course, that hasn’t stopped the government from being suspicious. They are largely worried about fraud, and so they give more scrutiny to petitions from small companies that are ostensibly US visamore likely to file frivolous petitions. They are also concerned that a founder is not an “employee” in the sense that there is no “employer” to control their work product. Here is how you can successfully handle these issues:

§  Include a detailed (but easy to read) business plan selling the government on your company, your idea, and your growth prospects;

§  Include evidence of all investments, cash on hand and/or commitments from future partners/customers; and

§  On the employer/employee issue: show that you have to answer to co-founders, a board of directors, and/or investors. Take a creative approach to what it means to have your work “controlled.”

The H-1B is valid for six years but can often be extended indefinitely if you have had a green card process reach a certain stage in the past. Holding H-1B status is also consistent with having an intent to secure a green card in the future, should a founder choose to pursue one of thos options detailed below.

Is there a treaty? The E-2 visa - If you are national of one of almost 80 countries (see http://travel.state.gov/visa/fees/fees_3726.html) , you can secure an E-2 investor visa into the United States by showing that you are committing a substantial amount of money to your venture. The definition of “substantial” has been purposely left vague, so founders have flexibility to show the government that they are investing enough to be taken seriously. A strong business plan showing the potential for growth and job creation is again key, as is proof that the company will be majority-owned by nationals/entities of the treaty country. While the company must be majority-owned by treaty nationals, the investment can come from other sources, so long as the funds are loaned (on an unsecured note) or gifted to the founder and in the founder’s full control.

The E-2 is valid for up to five years at a time, and can be renewed indefinitely for the life of the business. It also allows for other nationals of the treaty country to use the E-2 visa to join the company.

You have a track record: The L-1 visa – If you have already have a company that has existed for at least one year, and you wish to open up a related entity in the United States, then the L-1 visa is an option for you. Called the L-1 “new office” visa, you will have to show that you will be manager of several people or essential functions (as opposed to an individual contributor) for your new company within a year of approval. The beauty of this option is that it leads to the fast-track “multi-national manager” green card.

Are you Australian/Canadian/Chilean/Mexican/Singaporean? If so, you may be able to take advantage of a variety of visas created by free trade agreements between the U.S. and these countries. Most of these options are similar in style to the H-1B visa (see above), but can be cheaper and quicker to obtain.

The Chicken and the Egg: It seems that founders must have their companies largely formed before they can secure a visa. How, you may ask, are you supposed to set up a company if you don’t have a visa in the first place? Enter the B-1 visa (or the Visa Waiver Program, if you are from a participating country). Business visitors are allowed to enter the U.S. for the purpose of evaluating investment opportunities and meeting with potential clients, investors and service providers. You just cannot start engaging in productive work on payroll until you have secured one of the above options.

The Holy Grail: To many, permanent residency is the ultimate goal. Keep in mind that permanent residency in the U.S. brings with it certain tax obligations, so make sure to check with your tax advisor before taking this route. After you have done so, here is where that path can lead.homeland security seal

§  EB-1 Extraordinary Ability: If you have started a company and sold it off, chances are that you are in the running to be considered to have made the kind of “significant” contributions required to achieve the EB-1. If you have not, then you may still qualify if you have had publications, press coverage, patents, and other examples of acclaim not achieved by most. You do NOT have to show that you have won the Nobel Prize. And best of all, you can petition for yourself – you do not need a company to sponsor you.

§  EB-1 Multinational Manager: See the L-1 option above. Once you have had the L-1 for one full year, you can have your company sponsor you for a green card.

§  National Interest Waiver: If you can show that your company has such a potential for job creation that it is in the country’s best interest to admit you, then you may obtain a National Interest Waiver green card. However, this only works if there is no backlog in your preference category, so it usually is not available for Indian and Chinese nationals.

§  EB-5 Immigrant Investor: Invest between $500,000 and $1 million actively into your own company, or passively into an approved “regional center” investment, and receive a green card if you create or sustain at least 10 jobs for U.S. workers over a two-year period.

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Now, we are required to include the usual caveat that you must consult with an attorney to properly advise given your particular circumstances, and that the above is meant for informational purposes and should not be taken as legal advice.

But, we do hope that this article paints a more optimistic picture than what you may have heard in the past, since it is grounded in our firm’s real-life experience, and more importantly, part of our clients’ real-life success stories.

Sameer Khedekar is a Partner at Pearl Law Group, and oversees a wide variety of immigration matters for Fortune 500 companies, startups, and entrepreneurs in San Francisco, CA  -  “ground zero” of American entrepreneurship. 

Pearl Immigration Law Group