Attorney Niranjan Adhikari speaking at Select USA Investment Summit in Washington, D.C.
Any foreign investors, their executives, managers and employees have to obtain a right work visa or immigration option to be able to work and stay in the U.S. Some of those options could be B-1 business visitor for business meetings and initial exploration; Startup visa for high-growth startup companies; E-1 Treaty Trader or E-2 Treaty Investor for trader or investor from a treaty country; L-1A New Business or L-1A Manager or Executive or L-1B Specialized Knowledge worker of a multinational organization; O-1A visa for a person of extraordinary ability in business, arts or others; TN (Canada/Mexico) work visa for Canadian or Mexican citizen to work at a U.S. company; H-1B work visa (or other H visa) for a foreign professional worker to work for a U.S. company; or E-5 Investor Immigration Visa Program (Green card).
Below, we will discuss some those nonimmigrant visa options and immigration options for foreign investors and their employees.
- Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
- Negotiate contracts;
- Consult with business associates;
- Litigate;
- Participate in scientific, educational, professional, or business conventions, conferences, or seminars; or
- Undertake independent research.
January 17, 2017. USCIS, had published the final rule [Document Citation: 5238-5289] to encourage entrepreneurs throughout the world to develop their innovative ideas and create jobs in the U.S. This Startup Visa / Parole rule is part of Executive Action President Obama had announced in November 2014.
This rule allows the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:
- Who have a significant ownership interest in the startup (at least 10 percent) at the time of adjudication of the initial grant of parole and have an active and central role to its operations and future growth of the entity, such that his or her knowledge, skills, or experience would substantially assist the entity in conducting and growing its business in the United States;
- Whose startup was formed in the United States within the past five years; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
- Receiving significant investment of capital (at least $250,000, adjusted annually for inflation) from certain qualified U.S. investors with established records of successful investments;
- Qualified investment means an investment made in good faith, and that is not an attempt to circumvent any limitations imposed on investments under this section, of lawfully derived capital in a start-up entity that is a purchase from such entity of its equity, convertible debt, or other security convertible into its equity commonly used in financing transactions within such entity's industry.
- Qualified investor means an individual who is a U.S. citizen or lawful permanent resident of the United States, or an organization that is located in the United States and operates through a legal entity organized under the laws of the United States or any state, that is majority owned and controlled, directly and indirectly, by U.S. citizens or lawful permanent residents of the United States, provided such individual or organization regularly makes substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation. For purposes of this section, such an individual or organization may be considered a qualified investor if, during the preceding 5 years:
- The individual or organization made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such 5-year period of no less than $633,952; and
- Subsequent to such investment by such individual or organization, at least 2 such entities each created at least 5 qualified jobs or generated at least $528,293 in revenue with average annualized revenue growth of at least 20 percent.
- Receiving significant awards or grants (at least $100,000, adjusted annually for inflation) from certain federal, state or local government entities; or
- Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
- Receiving significant investment of capital (at least $250,000, adjusted annually for inflation) from certain qualified U.S. investors with established records of successful investments;
Under the rule, entrepreneurs who meets the above criteria (and his or her spouse and minor, unmarried children ) generally may be considered under this rule for a discretionary grant of parole lasting up to 30 months (2.5 years) based on the significant public benefit that would be provided by the applicant’s (or family’s) parole into the United States. An applicant will be required to file a new application specifically tailored for entrepreneurs to demonstrate eligibility for parole based upon significant public benefit under this rule, along with applicable fees. Applicants will also be required to appear for collection of biometric information. No more than three entrepreneurs may receive parole with respect to any one qualifying start-up entity.
A subsequent request for re-parole (for up to 30 months, for a total maximum period of 5 years of parole) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.
E-1 Visa (Treaty Traders)/ E-2 Visa (Treaty Investors):
A citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay. Treaty Traders (E-1) or Treaty Investors (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation.
To be an E-1 Treaty Treader, you must be coming to the United States to:
- engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country;
- Be a national of a country with which the United States maintains a treaty of commerce and navigation or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation;
- Carry on substantial trade; and
- Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification;
- Will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien’s behalf or as an employee of a foreign person or organization engaged in trade principally between the United States and the treaty country of which the alien is a national, taking into consideration any conditions in the country of which the alien is a national which may affect the alien’s ability to carry on such substantial trade;
- Intends to depart the United States upon the expiration or termination of treaty trader (E-1) status;
- the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the alien’s services essential to the efficient operation of the enterprise. The employee must have the same nationality as the principal alien employer. The principal alien employer must be:
- A person in the United States having the nationality of the treaty country and maintaining nonimmigrant treaty trader or treaty investor status or, if not in the United States, would be classifiable as a treaty trader or treaty investor; or
- An enterprise or organization at least 50 percent owned by persons in the United States having the nationality of the treaty country and maintaining nonimmigrant treaty trader or treaty investor status or who, if not in the United States, would be classifiable as treaty traders or treaty investors. Learn More at: https://www.adhikarilaw.com/work-visa/e-visas/e-1-visa/
To be an E-2 Treaty Investor, you must be coming to the United States to:
- develop and direct the operations of an enterprise in which you have invested a substantial amount of capital.
- The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country.
- If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
- The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise, etc.
- The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking.
- It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
- the investment must be at risk in the commercial sense.
- must be coming to the United States to develop and direct the enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
Note I : A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
Note II: for those individuals who obtained treaty country nationality through a financial investment, USCIS may require additional documentation to show that the applicant has been domiciled in the treaty country indicated in the application for a continuous period of at least 3 years at any point before applying for E-1 or E-2 classification (this is relevant to a small group of people who got their treaty country citizenship by investment).
L-1 Visa for Intracompany Transferee:
You may be eligible for an L-1 visa for “intracompany transferees” if you are an executive or manager, or a worker with specialized knowledge who has worked abroad for a qualifying organization (including an affiliate, parent, subsidiary or branch of your foreign employer) for at least one year within the 3 years preceding the filing of your l1 petition (or in some cases your admission to the United States) and the organization seeks to transfer you to the United States to open a qualifying new office in one of the capacities listed above.
Initial period of stay in the United States: Up to 3 years (1 year for new office petitions). Extensions possible in up to 2 year increments. Maximum period of stay: 7 years for managers and executives; 5 years for specialized knowledge workers.
The L-1 nonimmigrant classification enables a U.S. employer to transfer an executive, manager or specialized knowledge worker from one of its affiliated foreign offices to one of its offices in the United States. This L-1 classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.
L-1 (New Office)
For foreign employers seeking to send executive or manager or an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that:
- The employer has secured sufficient physical premises to house the new office ;
- The employee has been employed as an executive or manager or specialized knowledge employee for one continuous year in the three years preceding the filing of the petition; and
- The employer has the financial ability to compensate the employee and begin doing business in the United States; or
- The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
To qualify for a regular L-1 classification in this category, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
Qualifying relationship means organization abroad related to the U.S. organization as a “parent”, “branch”, “subsidiary”, or “affiliate”.
To qualify for a L-1A or L-1B, the named employee must also:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to provide service in an executive, managerial or specialized knowledge capacity for the branch of the same employer or one of its qualifying organizations.
- L-1A, Intracompany Transferee Executive or Manager: The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.
- L-1B, Intracompany Transferee Specialized Knowledge:
The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. - L-2, Family of L-1 Workers
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.
O-1 Visa
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
The O nonimmigrant classification is commonly referred to as:
- O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
- O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
- O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
- O-3: individuals who are the spouse or children of O-1’s and O-2’s.
Filing of the O-1A petitions and general requirements:
- O-1 petition may not be filed more than one year before the actual need for the alien’s services.
- Only one beneficiary may be included on an O-1 petition.
- An O-1 or O-2 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent.
- A foreign employer may not directly petition for an O nonimmigrant alien but instead must use the services of a United States agent to file a petition for an O nonimmigrant alien.
- A United States agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept services of process in the United States in proceedings on behalf of the foreign employer.
- An O alien may not petition for himself or herself.
Eligibility criteria for O-1A extraordinary ability in the fields of science, education, business, or athletics (or related field):
- To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
- Showing a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.
- Receipt of a major, internationally recognized award, such as the Nobel Prize, or
- At least three of the following forms of documentation:
(1) Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(2) Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(3) Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary’s work in the field for which classification is sought;
(4) beneficiary’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
(5) beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field;
(6) beneficiary’s authorship of scholarly articles in the field, in professional journals, or other major media;
(7) beneficiary’s has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
(8) beneficiary’s either commanded a high salary or will command a high salary or other remuneration for services.
If the above eight (8) criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.
TN (Canada/Mexico) Professionals
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico and TN professional work visa . NAFTA’s successor, Agreement between the United States of America, the United Mexican States, and Canada (USMCA) continues this visa program. The reciprocal TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The Appendix 2, Section D, Annex 16-A of the Chapter 16 of the USMCA lists the professions eligible for TN work visa.
Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, architects, computer systems analyst, economists, engineers, lawyers, management consultants, mathematicians, pharmacists, scientists, statisticians, social workers, teachers, and many other professions listed on USMCA list. You may be eligible for TN nonimmigrant status, if:
- You are a citizen of Canada or Mexico;
- Your profession is on the NAFTA/ USMCA list;
- The position in the United States requires a baccalaureate degree or appropriate credentials to practice the profession;
- You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment);
- You are seeking temporary entry without the intent to establish permanent residence. A temporary period has a reasonable, finite end that does not equate to permanent residence.
- You have the baccalaureate degree or appropriate credentials to practice in the profession in question.
H-1B Work Visa
The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as physical sciences, engineering, information technology, medicine, social sciences, business administration, accounting, etc. You may be eligible for an H-1B visa to work for the business or an organization in the United States if the occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists or mathematicians, researcher, etc.), and you have at least a bachelor’s degree or equivalent (based on education and/or experience) in a field related to the position.
Initial period of stay in the United States: Up to 3 years. Extensions are possible in up to 3 year increments. Maximum period of stay generally 6 years (extensions beyond 6 years may be possible).
Could an H-1B Visa work for you? Ask yourself the following questions to see if you might qualify:
- Do you have a bachelor’s degree or the equivalent (based on relevant experience)?
- Will you be working in a “specialty occupation?”
- Will you be earning a wage?
EB-1(A) Green card program
EB-1(A)extraordinary ability classification is for people who are recognized as being at the very top of their field as demonstrated by sustained national or international acclaim and recognized achievements in the field of expertise and who are coming to the United States to continue work in that field. To establish eligibility, you must demonstrate sustained national or international acclaim and that your achievements have been recognized in the field of expertise by showing: (1) that you have received a major internationally recognized award; or (2) that you meet at least THREE of the ten requirements listed below, (3) all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field, AND (4) your entry will benefit the U.S. substantially. If you have not received a major internationally recognized award, you must answer yes and submit evidence for at least 3 of the 10 questions below:
- Have you received any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor?
- Are you a member of associations that require outstanding achievements of their members as judged by recognized national or international experts?
- Is there published material in professional or major trade publications or major media about you which relates to your work in the field?
- Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
- Have you made original scientific, scholarly or business contributions that are of major significance?
- Have you authored scholarly articles in professional journals or other major media?
- Has your work been displayed at artistic exhibitions or showcases?
- Have you played a leading or critical role for an organization with a distinguished reputation?
- Have you or will you command a high salary or other remuneration for your services in comparison to others in your field?
- Have you enjoyed commercial successes in the performing arts?
[Self-petition possible even without job offer]
If any of the criteria above do not readily apply to your occupation, you may submit comparable evidence to show your eligibility.
Second, all of the evidence will be reviewed in its totality for a final merits determination of whether you qualify for this classification.
It is also important that it has to be established that you are coming to (seeking to remain in) the United States to continue to work in your area of extraordinary ability.
EB-1(C) Multinational manager or executive green card program
You must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
Your petitioning employer must be a U.S. employer. Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.
The EB-2 NIW classification is divided into two sub-categories:
- professionals with advanced degrees and
- individuals with exceptional ability in the sciences, arts or business.
Although a job offer from an employer and a labor certification from the Department of Labor are generally required for the EB-2 classification, you may be eligible to self-petition if you are asking for a waiver of the labor certification requirement based on the national interest.
EB-2 Advanced Degree Professional
You may be eligible for this category if: (1) you are a professional holding a U.S. master’s degree or higher or foreign equivalent degree that relates to the field you will be working in; or (2) you have a U.S. Bachelor’s degree or foreign equivalent degree and at least 5 years of progressively responsible experience in your field after receiving your Bachelor’s degree.
EB-2 Exceptional Ability
You may be eligible for this category if you have exceptional ability in the sciences, arts, or business. Exceptional ability means that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.
One of the above EB-2 Petitions could be filed asking for a waiver of the labor certification requirement based on the national interest. With the petition we would need to provide evidence:
- that the beneficiary has an advanced (master's or PhD) degree or a Bachelor’s degree in addition to five (5) years of progressive experience, or the beneficiary qualifies as an alien of exceptional ability. [for exceptional ability, one has to show exceptional ability in the sciences, arts, or business which means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.]
- the foreign national’s proposed endeavor has both the:
- substantial merit; and
- national importance.
- The foreign national is well-positioned to advance the endeavor, and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
On December 27, 2016, in Matter of Dhanasar (26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office (AAO) of US Citizenship and Immigration Services (USCIS) clarified and revised the standard for granting a national interest waiver (NIW) of the PERM labor certification job offer requirement under the EB-2 immigrant visa classification. The AAO held that a foreign worker is eligible for a national interest waiver under Section 203(b)(2)(i) of the Immigration and Nationality Act (INA) if the foreign worker demonstrates above evidence.
The AAO specified that this new test should be judged under a preponderance of the evidence standard, requiring a showing that the foreign worker more likely than not satisfies the requirements.
EB-5 Investment Visa Program for Permanent Residency (Green Card) in the U.S.
Immigrant Investor Program, EB-5, was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. On March 15, 2022, the United States enacted the EB-5 Reform and Integrity Act of 2022 (the 2022 Act) as part of a large omnibus budget package of legislation. It provides a 5-year reauthorization of the Regional Center Program with substantial changes, marking an achievement long-awaited by the Regional Center industry. All EB-5 investors must invest in a new commercial enterprise (any enterprise established after Nov. 29, 1990 or a new business). Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
Note: This is a blog post by Adhikari Law PLLC and should not be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer. You can contact us at (+1) 202 600 7742, or email us at info@adhikarilaw.com if you will have any question on this topic or would.