Whether you are desiring to start a business in the United States or have established one already, you may be eligible for a non-immigrant or immigrant visa. Fortunately, US immigration law provides multiple options in this regard.
This article briefly touches on the popular routes available to foreign entrepreneurs seeking to live and run their business in the US.
E-2 Treaty Investor Visa
The E-2 visa is a great and often times, quick option for entrepreneurs seeking to establish a business in the United States or invest in an existing one. The E-2 non-immigrant visa is available to nationals of specified countries that have a certain treaty with the US. One must demonstrate a substantial investment in the US entity; there’s no prescribed minimum, and substantiality is generally assessed based on the proportion between the invested funds and value of the business. Investments can be by way of cash, inventory, or intellectual property. The capital must be sufficient enough for the business’ operational success. For example, while an investment of USD 60,000 may be substantial for a juicery, it would not work for a inventory-heavy or manufacturing business.
An E2 visa can be renewed indefinitely as long as the business continues to operate and the investor – entrepreneur remains actively engaged in the business. To qualify, the investor does not need to own or run a business in their country or if they do have one, the nature of the US E-2 business need not be the same as their foreign business.
L-1 Intracompany Transferee Visa
The L-1A, a dual-intent nonimmigrant visa, is used for the transfer of qualified managerial and executive personnel from an overseas company to a related company in the United States. The key criteria are: (1) existence of a qualifying relationship between the foreign and US entity (the US entity should be a parent, subsidiary, affiliate or a branch of the foreign company); (2) the applicant should have worked in a managerial or executive capacity for the foreign employer abroad for at least a year (3) should be assuming a managerial or executive role in the US as well.
An eligible foreign business owner desirous of expanding their business operations into the US or venturing into a new business line can apply for the L-1 visa for themselves. The business need not be operational, an L-1 can be applied for “new office” purposes too, where the US business is a startup and has not been engaged in activities for more than a year. Here as well, there is no prescribed minimum investment amount. A founder and CEO of an established logistics and warehousing company in Vietnam for example, who is keen on starting and running a similar or different business or businesses in the US may be eligible for the L-1A visa option.
EB-1C – Multinational Managers and Executives
The EB-1C visa is a green card/immigrant visa category, available to certain multinational executives and managers who have been employed abroad for at least a year and whose employer is related to a U.S. company (by way of being a parent, subsidiary, affiliate or branch). The US EB-1C sponsor must be engaged in business for at least a year and must offer to employ the foreign applicant in a managerial or executive capacity in the United States.
The US business does not need to be large; there’s no minimum revenue, earnings, investment or staff prescribed, even small businesses may qualify as long as the EB-1C requirements are met and the company can show the financial ability to pay for the proffered position.
The EB-1C visa grants permanent resident status. This category does not require the lengthy labor certification process and the wait time for obtaining a green card is significantly shorter compared to those of the other employment categories.
EB-1C is a common route adopted by L-1A executives or managers employed in the US to transition to permanent residency. EB-1C, however, is not limited to L-1 employees; it can be used to sponsor the green card for a multinational manager or executive who has not worked in L-1 status in the US as long as the visa requirements are met.
EB-5 Investment (Direct)
The EB-5 immigrant visa is reserved for foreign investors/entrepreneurs who are willing to invest capital in a new or existing business in the US, that will result in jobs for US workers. Unlike the EB-5 regional center route, under direct EB-5, the investor invests his money directly into their own or a family member’s business which can be a new or an existing one. The minimum amount is $800,000 in a commercial enterprise in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA. Business options under the EB-5 direct route can include retail, services industry, franchise model, restaurants, gas stations, manufacturing and so on.
Upon approval of the I-526 which is the first stage, the investor will receive a two conditional green card, which later leads to permanent resident status upon fulfilment of certain criteria.
O-1 Extraordinary Ability
The O-1 visa is reserved for individuals having extraordinary ability in business, education, sciences or athletics. It’s a good option for accomplished entrepreneurs desirous of starting a new business in the US. One has to demonstrate extraordinary ability by a documented record showing that they have sustained national or international acclaim, are recipients of awards, have testimonials form leading experts in their industry, among other things. Evidence is usually in the form of media coverage, publications, press coverage, testaments from experts, etc.
Similar to the L-1 or E-2, the investor’s own start-up company can sponsor them for the O-1 visa. Unlike the EB-5, there is no minimum investment in the company. The O-1 visa initially granted grants the entrepreneur 3 years with available extensions.
EB-2 (National Interest Waiver)
Certain entrepreneurs can also avail the Employment-Based (EB-2) National Interest Waiver visa, which is an immigrant visa, leading to a green card. There’s no US job offer or sponsor needed, the entrepreneur can self-petition. The entrepreneur needs to demonstrate exceptional ability or that they have an advanced US degree along with demonstrating that their work has “substantial merit and national importance;” they are in a good position to achieve what’s stated in their business proposal, and that their endeavor on balance, would be beneficial to waive the job offer requirement.
Entrepreneur applicants must be ready to present multifaceted and specific evidence along with a very well-articulated business plan. Evidence can include educational credentials and work experience, investments, revenue growth and job creation, awards, grants, media and press coverage, testament from leading experts and industry organizations and so on.
This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.
Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.
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