The U.S. immigration system has no specific visa category for immigrant entrepreneurs. As a result, would-be entrepreneurs come to the United States through many different channels, and from a wide range of backgrounds. As such, entrepreneurs and business owners present unique challenges but with creative solutions and corporate structuring, there are several nonimmigrant and immigrant options to explore.
Certain entrepreneurs may be eligible for temporary E visas if they are from countries with which the United States has an appropriate treaty.
- E-1 (Treaty Trader) Visais for foreign nationals who conduct “substantial trade” between the United States and the person’s country of nationality.
- E-2 (Treaty Investor) Visais for foreign nationals who come to the United States to develop and direct the operations of an enterprise in which they have invested, or are in the process of investing, a “substantial amount of capital.”
Unlike most nonimmigrant visas, the E visa may be renewed indefinitely.
For E visa purpose, the U.S. company must be at least 50 percent owned by treaty nationals. Unlike most other nonimmigrant employment based visas, E visas do not require an underlying petition and often even if USCIS approves an I-129 E petition, the treaty company and E visa applicant will undergo a separate and often more thorough review at the consular post. Processing times and specific requirements vary at posts making planning and post specific preparation essential.
New Company L-1 visa is a viable and valuable alternative available to foreign companies, actively engaged in doing business abroad, to set up operations in the United States and transfer key managerial and/or executive level employees to manage and run the newly established entity.
New Company L-1 visa may be an option for entrepreneurs who already have managerial or executive experience with an existing company outside the United States and have a related business or could establish a new business in the United States. The L-1 regulations define a new office as “an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year.”
The Immigration and Nationality Act (INA) makes visas available to qualified foreign nationals who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers.
The INA authorizes approximately 10,000 visas each fiscal year for immigrant investors (along with their spouses and unmarried children under the age of 21) who have invested or are actively in the process of investing in a new commercial enterprise and satisfy the applicable job creation requirements.
The INA established a threshold investment amount of $1,000,000 U.S. dollars per investor. At least 3,000 of the approximately 10,000 EB-5 visas annually are reserved for qualified immigrants who invest in new commercial enterprises that will create employment in Targeted Employment Areas (TEA), which includes rural areas and areas with high unemployment. The minimum amount for investing in a TEA is currently set at $500,000 U.S. dollars per investor.
While the EB-5 visa requires significant monetary investment, foreign-born entrepreneurs and investors may qualify for Lawful Permanent Residence (commonly called “Green Card”) in the EB-2 category if they can demonstrate that the creation and operation of their business will produce significant benefits and is “deemed to be in the national interest” of the United States.
Overturning nearly two decades of precedent on how an individual qualified for the National Interest Waiver, the Administrative Appeals Office (AAO) in December 2016 issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016. Matter of Dhanasar provides that USCIS may grant a NIW if the petitioner demonstrates:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- The foreign national is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.