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The Problems with Current Entrepreneurial Visa Options

Stanford University hosted an event as part of their Entrepreneurship Week on Sunday, March 3 that was packed with 200 students looking for ways to get visas and green cards in order to jumpstart their ventures. As an immigration expert, Ms. Khandelwal shared her knowledge on the dos and don'ts of visas, and lamented the fact that H1-B visa holders, which some of the attendees were, cannot start up their own companies. "It does not allow you to work for anybody else," including your own business, she stated.

However, with the talk of legislation such as the Startup Visa Act 3.0, which we've previously blogged about, that may soon change. In the meantime, temporary visa holders and other noncitizens looking to get into the United States have other means of starting up an American business. The H1-B, E-1, E-2, and L-1 visas are all nonimmigrant visas options, but only allows a person to stay in the United States for a particular purpose for a limited period of time. The only immigrant visa with an entrepreneurial option is the EB-5 visa, which provides the "green card" that leads to a path to citizenship directly.

Despite what may seem like many options, these visas are often subject to cumbersome and prohibitive requirements. Most notably, there is only a single visa - the EB-5 visa - that allows for a "green card" directly. The nonimmigrant visas (H1-B, E-1, E-2, and L-1) only allow for temporary residence and must be tied to the specific purpose the visa was approved upon. This is hardly the way to reward entrepreneurial immigrants who contribute heavily to the American economy, create jobs, and spur innovation.

Furthermore, the EB-5 option may be cost prohibitive and is limited in number. Currently, the bare minimum investment threshold is $500,000 USD, which is quite a hefty sum and difficult to accumulate for those looking to immigrate quickly. Furthermore, the large majority of these projects are done through pooled investments with Regional Centers, and involve a variety of different construction projects, meaning it could take years before a person can immigrate into the United States. The large majority of these visas also came from Chinese applicants, and most recently China nearly hit their visa cap under the Regional Center pilot program.

The nonimmigrant visas are seemingly flexible, but there are still many issues. On top of the fact that they do not directly provide for a path to citizenship, each nonimmigrant visa ties the noncitizen to a specific position or purpose. For example, the L-1 intracompany visa is only available to managers, executives, and "key knowledge" employees that are coming to the United States to work at an American subsidiary, affiliate, or branch office. The E-1 or E-2 Treaty Visa beneficiaries must be nationals of an exclusive list of countries; Most notably, major countries like India are missing from this list. And even with the more flexible approach adopted by USCIS in 2011 for H1-B visa holders looking to start their own business, they must still demonstrate that their employment is under the control of preferred shareholders, other investors, or a board of directors that have the power to hire, fire, pay, supervise or otherwise control the H1-B visa holder.

Because of these issues, a successful case requires the expertise of an experienced attorney that can navigate the intricacies of immigration law and understands the realities of start-up businesses. Contact Ms. Sweta Khandelwal if you have exploring these entrepreneurial visa options or have any other immigration questions.

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