The H1-B Entrepreneur
It is very much possible to hold a managerial position of a company you helped establish with a H1-B visa. On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS announced many immigration initiatives designed to boost the economy. The most notable one included a policy shift to allow a H1-B visa holder to have a majority or even 100% stake in his or her own company, including as a sole employee, as long as he or she can demonstrate that the company has the right to control the entrepreneur’s employment. Some examples include preferred shareholders or a separate Board of Directors that control the terms and conditions of the entrepreneur’s employment.
E-1 Treaty Trader and E-2 Treat Investor
Both the E-1 Treaty Trader and E-2 Treaty Investor applicant must be a national of one of the qualifying treaty countries, found here on the Department of State’s website. Noticeably, major countries such as India do not make it onto this list. Both visas have no limit on their issuance, are valid for two years and can be extended in two-year increments indefinitely. Both the E-1 Treaty Trader and E-2 Treaty Investor must be employed in a supervisory or executive role or have specialized skills are essential to the efficient operation of the business.
For an E-1 Treaty Investor, both the applicant and the trading firm must be of the same nationality of a qualifying treaty county (for a full list, see below). The company must be at least 50% owned by nationals of the treaty company. The international trade must be a sizable and continuing volume of trade between the countries and more than 50% of the total volume of the company’s international trade must be between the two countries. The applicant him/herself must be employed in a supervisory or executive capacity or possess highly specialized skills essential to the efficient operation of the company. “Ordinary” skilled or unskilled workers do not qualify.
For an E-2 Treaty Investor, the investment must be sufficient to ensure the successful operation of the enterprise, and “at risk,” meaning that there is a risk of loss (i.e. not a guaranteed loan). The investment must be in a functioning, real enterprise and do more than just provide passive income to the investor. E-1 Treaty Trader, the E-2 Treaty Investor
L-1 Intra-Company Transferee
The L-1 visa is a nonimmigrant visa that allows for established foreign companies to send managers, executives, and “key knowledge” employees to work in American branches, subsidiaries, or affiliates. The L-1 visa is split into two types: the L-1A visa for managers or executives, and L-1B visa for employees with “key knowledge” of the business’s products or processes. For both types of L-1 visas, they must be employed on a full-time basis. Conveniently, there is no numerical cap on L-1 visa issuances. It is possible to eventually petition for an immigrant visa (i.e. a green card) under either the EB-1 Multinational Manager and Executives option or the one of the EB-2 options, depending on the circumstances.
O-1 Individuals with Extraordinary Ability or Achievement
Individuals with extraordinary talents in the sciences, arts, education, business, or athletics may have the ability to continue in those fields while residing in the United States. While the eligibility criteria appears daunting – USCIS describes it as “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.” , many entrepreneurs are successfully using the O visa to work for their own start-up companies. An entrepreneur could demonstrate that 1) there are published articles about their business/skill in major media; 2) a high salary evidenced by contracts; and 3) employment in a critical or essential capacity for organizations with distinguished reputations. The full list is on the same page linked immediately above. O Visa beneficiaries can stay for 3 years initially and then must apply for one year extensions after.
EB-5 Immigrant Investor
The EB-5 immigrant visa is the only option that provides a “green card” directly. Applicants can choose to directly invest in a business or pool their funds through a Regional Center; a Regional Center is a specially designated investment vehicle company that’s meant to manage and pool EB-5 funds. Some examples of popular investment projects include commercial and residential real estate, hotel development, and green energy production. Although the investment minimum requirement can vary from $500,000 to $1,000,000, the basic requirement is that each investment must create 10 full-time jobs in 2 years from the full infusion of the EB-5 investment.
Although these may seem like there are many different options for someone to start up their own business, as we noted in our last post there are many hurdles and issues that require an experienced business immigration attorney. These issues include basic financial milestones such as coordinating with professional consultants, drafting a business plan, incorporating your company, and of course navigating through the confusing immigration system’s own requirements. Contact our office to learn more and for assistance in starting up your own venture!