OVERVIEW OF IMMIGRATION OPPORTUNITIES FOR ENTREPRENEURS AND FOREIGN BORN FOUNDERS OF STARTUP COMPANIES
The U.S. government has proposed to attract the world’s best and brightest entrepreneurs to start the next great companies in the United States. On November 28, 2012 U.S. Citizenship and Immigration Services (USCIS), the Federal agency responsible for administering visa programs, announced new resource for immigrant entrepreneurs, the Entrepreneur Pathways, an online resource center which gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States. Immigrant entrepreneurs have always made extraordinary contributions to US economic growth and competitiveness, creating jobs and new businesses all across the country. Immigrants started 25 percent of the highest-growth companies in America, including iconic success stories like Intel, Google, Yahoo, and eBay, which together employ an estimated 220,000 people within the United States. Entrepreneur Pathways explains, in plain English, which existing visa categories might be available to that entrepreneur under current law, and what evidence would be necessary to demonstrate eligibility. Imagine that an entrepreneur from another country participates in a startup mentorship program in the United States, raises a first round of funding from investors, and wants to stay here to grow the company and hire more people.
Earlier the USCIS had started a new initiative to harness industry expertise from the public and private sectors that will increase the job creation potential of employment-based and high-skilled visa categories. Called 'Entrepreneurs in Residence (EIR)', the initiative builds upon a series of policy, operational, and outreach efforts within the framework of existing immigration laws. This program supports the White House and Department of Homeland Security’s (DHS’) efforts in growing the U.S. economy and creating American jobs. The USCIS EIR initiative consists of a tactical team comprised of outside experts working alongside USCIS staff. The team developed and deployed a training workshop for USCIS immigration officers focusing on the business realities of early-stage companies, trained a team of specialized immigration officers to handle entrepreneur and startup cases, and ensured that the adjudication process incorporates new types of evidence relevant to startup enterprises.
A General Guide to Non-Immigrant and Immigrant Visa Options for Entrepreneurs and foreign-born founders of Startup Companies
Where to begin?
If you are a foreign entrepreneur and you want to start or run a business in the United States, you must first obtain authorization from USCIS through the immigrant or nonimmigrant visa process to live and work here. It is important to determine upfront which visa classification works best for you. Not every classification that USCIS administers will allow you to work in the United States. Most nonimmigrant visa petitions are issued for a specific type of activity with a specific employer. When considering which option may apply best to your situation and your desired activities in the United States, it is important to plan ahead and keep in mind that there may be a variety of options available to you.
There are number of visas for foreign entrepreneurs to explore or start a new business in the United States. If you are new to the immigration process, we recommend that you consult with an immigration attorney.
Visa categories you might qualify:
F-1 / OPT Optional Practical Training
You may be eligible for Optional Practical Training (OPT) if you are an F-1 student in the United States and you seek to start a business that is directly related to your major area of study.
Maximum possible work authorization: An F-1 student may be authorized for up to 12 months of OPT, and become eligible for another 12 months of OPT when he or she seeks another post-secondary degree. An F-1 student with a qualified Science, Technology, Engineering or Mathematics (STEM) degree may apply for a 24-month extension of post-completion OPT.
H-1B Specialty Occupation
You may be eligible for an H-1B visa if you are planning to work for the business you start in the United States in an occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists, business professionals or mathematicians), and you have at least a bachelor’s degree or equivalent in a field related to the position.
Initial period of stay in the United States: Up to 3 years. Extensions possible in up to 3 year increments. Maximum period of stay generally 6 years (extensions beyond 6 years may be possible).
Other H visa programs include:
- H-1B2 (Department of Defense Researcher and Development Project Worker, cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. Department of Defense),
- H-1B3 (a fashion model of prominence that is a fashion model of distinguished merit and ability.)
- H-1B1 (specialty worker from Singapore),
- H-2B (non-agricultural temporary or seasonal worker),
- H-2A (agricultural temporary or seasonable worker),
- H-3 (Nonimmigrant Trainee or Special Education Exchange Visitor),
- H-1C (Registered Nurse Working in a Health Professional Shortage Area as Determined by the Department of Labor),
- H-4 EAD (Certain H-4 dependent spouses of H-1B nonimmigrants)
B-1 Business Visitor
You may be eligible for a B-1 visa if you are coming to the United States as a business visitor in order to secure funding or office space, negotiate a contract, or attend certain business meetings in connection with opening a new business in this country. With this visa you can participate in business activities of a commercial or professional nature in the United States, including, but not limited to:
- Consulting with business associates
- Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
- Settling an estate
- Negotiating a contract
- Participating in short-term training
- Transiting through the United States: certain persons may transit the United States with a B-1 visa
Initial period of stay in the United States: Generally up to 6 month. Extensions possible.
B-1 in lieu of H-1 or H-3 are cases in which aliens who qualify for H1 or H3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H1 or H3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
- With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity should not be considered as coming from a “U.S. source”;
- In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad; and
- An alien classifiable H-2 must be classified as such notwithstanding the fact that the salary or other remuneration is being paid by a source outside the United States, or the fact that the alien is working without compensation (other than a voluntary service worker classifiable B-1 For participating in a voluntary service program a religious or nonprofit charitable organization). A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien.
O-1A Extraordinary Ability and Achievement in sciences, arts, education, business, athletics, or similar endeavors
You may be eligible for an O-1A visa if you have extraordinary ability in the sciences, arts, education, business or athletics, which can be demonstrated by sustained acclaim and recognition, and you will be coming to the United States to start a business in your field. Extraordinary ability means you have a level of expertise indicating you are one of the small percentage of people who have risen to the very top of your field.
Initial period of stay in the United States: Up to 3 years. May extend or renew the period of stay in 1 year increments as necessary to complete or further the event or activity.
Similarly, O-1B visa is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television productions and who is coming temporarily to the U.S. to continue work in the area of extraordinary achievement.
L-1 Intracompany Transferee
You may be eligible for an L-1 visa for “intracompany transferees” if you are an executive or manager (L-1A), or a worker with specialized knowledge (L-1B) 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 L-1 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 (L-1 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.
Start-up Entrepreneur Parole Program
USCIS has enacted new rule 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. Under this proposed rule, 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) from certain qualified U.S. investors with established records of successful investments;
- Receiving significant awards or grants (at least $100,000) 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.
TN NAFTA Professionals
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The 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.
Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers.
Initial Period of Stay, up to 3 years, and extensions possible.
E-2 Treaty Investor
You may be eligible for an E-2 visa if you invest a substantial amount of money in a new or existing U.S. business, and are from a country that has a treaty of commerce and navigation with the United States or a country designated by Congress as eligible for participation in the E-2 nonimmigrant visa program. Department of State maintains the list of treaty countries.
Initial period of stay in the United States: Up to 2 years. May extend or renew the period of stay in 2 year increments indefinitely.
Business Visitor under Visa Waiver Program
The Visa Waiver Program (VWP) enables nationals of 35 participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Nationals of VWP countries must meet eligibility requirements to travel without a visa on the VWP
EB-5 Immigrant Investor (green card based on investment)
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. 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. Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust or other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
Job Creation Requirements
Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars.
Required minimum investments are:
- General: The minimum qualifying investment in the United States is $1.05 million.
- Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $800,000.
(Regional Center funding projects in TEA’s can accept a minimum of $800,000 from each EB-5 investor).
A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.
A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
An EB-5 regional center is an economic unit, public or private, in the United States that is involved with promoting economic growth. Regional centers are designated by USCIS for participation in the Immigrant Investor Program.
EB-1 Green Card Program
The EB-1(A), person with 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, (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.
[Self-petition possible even without job offer]
EB-1(B) Outstanding professors and researchers
Have to demonstrate international recognition for your outstanding achievements in a particular academic field. One must have at least 3 years experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
EB-1(C) Multinational manager or executive
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.
(Give us a call if you would like to discuss one of these visa options which may be available to you, your business partners or employees. Tel: 888-820-4430 (office) www.adhikarilaw.com | firstname.lastname@example.org)