There is a lot of noise around the U.S. immigration system nowadays. Since the election of President Trump, there has been a sharp and drastic turn in immigration rhetoric and immigration policy in general compared to what we have seen in recent years. From discussions on immigration reform, the focus has shifted to strengthen immigration enforcement and boarder security as a priority.
Although major regulatory and legislative changes to the U.S. immigration system are way overdue and necessary, so far, the current regulatory system has not been changed and besides the immigration enforcement actions that are widely publicized, we have not seen specific regulatory and legislative changes or specific proposals to reform the current immigration system.
For foreign enterprises looking to enter the vast U.S. market, their employees, startup and emerging ventures, investors, talented business leaders, and entrepreneurs choosing the right path to obtain a U.S. visa may be a key to success in the U.S. market.
The below summary describes some of the most viable non-immigrant and immigrant visa alternatives currently available to foreign entrepreneurs who wish to come to the United States.
Traditional visa options, such as the L-1, E-2 and H-1B visas and the EB-5 program are widely used among foreign entrepreneurs, however, we would like to point out that qualified applicants who possess extraordinary ability in their respective business field may be eligible to apply for O-1 visa or use the EB-1 immigration category.
NON-IMMIGRANT VISA OPTIONS
The L-1 “intracompany transferee” visa may be a good alternative for foreign enterprises wishing to temporarily transfer their executive, managerial or specialized knowledge employees to a parent, branch, affiliate, or subsidiary of the same company in the United States. To qualify for an L-1 visa, one must be employed in a managerial or executive capacity, or have specialized knowledge and be tranferred to a position within the U.S. company at either of these levels. In addition, the employee must have been employed outside the United States with the same employer continuously for one year within the three years preceding the application for admission into the United States. Both the foreign entity and the US entity must have a qualifying relationship and must be doing business as an active and operating enterprise. In case of a new US entity which has not been doing business for over one year, in addition to the above general requirements, sufficient physical premises must be secured to house the US operation. In case of a new office, the transferred employee will be allowed a maximum initial stay of one year, however in all other cases the transferred employee will be allowed a maximum initial stay of three years and until the maximum seven year limit is reached, an extension of stay may be requested.
A foreign entrepreneur may be eligible to obtain an E-2 Treaty Investor visa if he/she invests a substantial amount of money in a new or existing U.S. business. The investor must be a citizen of a country that has a treaty of commerce and navigation with the United States.
The investor must be coming to the United States to develop and direct the operation of an enterprise in which the investor has invested a substantial amount of capital, including funds and other assets, that are at risk in the commercial sense and the investment is made with the objective of generating a profit. The investment enterprise must be real, active commercial enterprise. The investment funds must be irrevocably committed and subject to partial or total loss if the entity fails. In addition, the investor must also demonstrate clear and legitimate path regarding the source of the invested capital.
In general, H-1B visa may be requested if someone intends to travel to the United States to perform services in a specialty occupation. To qualify, one must hold a bachelor's or higher degree (or an equivalent degree) in the specific specialty for which he/she seeks employment. In certain cases, H-1B visas may be obtained if an entrepreneur is planning to work for a business the entrepreneur started in the United States in an occupation that normally requires a bachelor’s degree or higher in a related field of study. The key in these cases whether the entrepreneur can demonstrate that there is a valid employer-employee relationship, and whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may also be able to establish a valid employer-employee relationship, if the petitioning entity has the right to control the beneficiary’s employment.
O-1A visa may be requested for individuals with extraordinary ability in the fields of sciences, arts, education, business and athletics, demonstrated by sustained acclaim and recognition.O-1A visas are traditionally available for individuals who intend to work in the United States in the fields of their specialty,
O-1A visas are traditionally available for individuals who intend to work in the United States in the fields of their specialty, however in certain cases it can also be an option for entrepreneurs who are coming to the United States to start a business in their field. To qualify, an individual must be recognized as being at the very top of their field and possess a level of expertise indicating that they are one of the small percentage of people who have risen to the very top of their field.
To establish eligibility for an O-1A visa the entrepreneur must either show receipt of a major, internationally recognized award, for instance a Nobel Prize, or submit evidence of at least (3) three of the following evidentiary categories:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
- Original scientific, scholarly, or business-related contributions of major significance in the field
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
IMMIGRANT VISA OPTIONS
An entrepreneur, similarly to the O-1A non-immigrant visa option, may be eligible for the EB-1 extraordinary ability immigrant classification if the entrepreneur possesses extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated by sustained national or international acclaim and recognized achievements in the field of expertise. In addition, the entrepreneur must demonstrate that he/she will continue working in your area of extraordinary ability. Extraordinary ability means that your level of expertise indicates that the entrepreneur belongs to a small percentage of individuals who have risen to the very top of your field. The entrepreneur may self-petition as an extraordinary ability individual since a job offer is not required for this classification. The evidentiary qualifications to be established are also similar to those discussed in connection with the O-1 visas above.
EB-5 visa may be requested for investors, whose investments contribute to the economic growth of the United States. To qualify, an investor must invest a minimum of either U.S. $500,000 or $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
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