Foreign entrepreneurs are a significant part of our country and economy. They organize and operate a business or businesses, taking on greater than normal financial risks to do so. More than 40 percent of the Fortune 500 companies were founded by immigrant. First- or second-generation immigrant-founded Fortune 500 firms are headquartered in 33 of the 50 states, across the United States, such as Estee Lauder, Tesla, SpaceX, SolarCity, Yahoo, eBay, Robinhood among others.
The United States have several non-immigrant and immigrant visa options for entrepreneurs. When considering the best entrepreneur visa option, it is important to have a comprehensive approach to better assess the situation.
Entrepreneurs are focused on working on their project and developing the business. They usually ask:
How Can I Get US Startup Visa?
This is the most common question when I meet with a client: how can I get a US startup visa? With the right advice and planning, selecting the right immigration path for entrepreneurs is essential to achieve sustainable success.
There could be several visa options for entrepreneur visa applicants, which are explained below. If a person is already in the United States in a non-immigrant visa status, such as F-1, H-1B, E-2, E-1, O-1, L-1A, it is not uncommon that s/he may have made significant advancements in his/her entrepreneurship career and may now classify for a better visa option.
Can I get a U.S. Visa by Owning a Business? Can I live in the U.S. if I Own a Business?
The short answer is yes, if the entrepreneur meets the visa requirements that allows a person to own a business and apply for the right visa, such as E-2, L1-A. Let’s start from the basic visa options.
Entrepreneur Non- Immigrant Visa: E-2 Visa.
This is a non-immigrant visa based on a treaty between a particular country and the U.S. E-2 investor must invest funds in the US enterprise. There is no specific requirement on the amount to be invested, but it must be “substantial” relative to the nature of the business to be operated in the United States.
To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation.
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
Effective January 31, 2022, Dependent spouse (E-2) is work-authorized incident to their status, meaning that these dependent spouses will not need an employment authorization document (EAD) to work in the United States.
Entrepreneur Non-Immigrant Visa: H-1B.
The H-1B visa in the United States allows U.S. employers to temporarily employ foreign workers in specialty occupations, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
- Theoretical and practical application of a body of highly specialized knowledge; and
- Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The position must also meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
- For you to qualify to perform services in a specialty occupation you must meet one of the following criteria:
- Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
Can a Founder of a US Enterprise Apply for H-1B Visa?
An individual who is a founder of a U.S. enterprise, and who can show a true employer-employee relationship, among other requirements, may apply for H1B visa. This visa is subject to an annual lottery if the person has never had an H-1B. In designing the right path tailored to the entrepreneur’s goals, an important part of the analysis is the company’s financial situation, including angel investors, venture capital, contracts with client in place, cash flow, and more.
Entrepreneur Non-Immigrant visa: L-1A.
L-1A visa is ideal where the start-up has been operating overseas for 1 year, has a significant structure, and the founder or employees are coming to the U.S. to run, manage or set up a U.S. office or unit. L-1A visa is a dual intent visa (immigrant and non-immigrant) and allows to apply for green card in EB-1C category, provided that the applicant meet the requirements.
To qualify for L-1 classification in this category, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business (regular, systematic, and continuous provision of goods and/or services) as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1
To qualify, the named employee must also:
- Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Effective January 31, 2022, Dependent spouse (L-2) is work-authorized incident to their status, meaning that these dependent spouses will not need an employment authorization document (EAD) to work in the United States.
EB-1(c) immigrant visa is available after the U.S. enterprise has been operating for 1 year. No PERM (Labor Certification) is required. The application process requires: 1) the U.S. employer to file USCIS Form I-140, Petition for Alien Worker. As part of the application process, the employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. 2) Form I 485 Green Card Application can be filed concurrently with the I-140 or after the I-140 is approved.
Entrepreneur Non-Immigrant Visa: O-1.
The O-1 is a three-year temporary work visa for those with ‘extraordinary abilities.’ This is possible for individuals at the top of their field in technology, business, science, or the arts. This visa can be viable especially for funded start-ups. Qualification for the O-1 is based on your accomplishments, not your credentials.
Types of evidence for O-1 used for other start-up founders include, evidence of significant funding, customers letters of reference, contracts with substantial customers, industry expert reference letters, notable press articles, significant salary and share ownership in a company, valuation of the US company, participation in significant incubator programs.
There are eight criteria to demonstrate extraordinary ability. Individuals with extraordinary ability must meet three of the eight criteria to qualify for the O-1.
Effective January 21, 2022, U.S. Citizenship and Immigration Services issued policy guidance clarifying how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on petitions filed for individuals in science, technology, engineering, or math (STEM) fields. US Citizenship and Immigration Services has taken immigration actions to expand opportunities for foreign STEM scholars, students, researchers, and experts and the U.S. businesses that seek to employ them, as well as new guidance for O-1A “extraordinary ability” and national interest waiver (NIW) petitions.
Entrepreneur Immigrant Visa: EB-2 and EB-3.
The EB-2 visa is the second preference employment-based green card category that grants U.S. permanent residency to foreign nationals with advanced degrees or exceptional ability. Eligible candidates for this immigrant visa category include those who hold an advance degree or its equivalent, or have an exceptional ability in the sciences, arts or business. This is a three-part process: 1) filing PERM (Labor Certification); 2) I-140 Immigrant petition; and 3) I 485– green card application. This application can be filed when priority date is current.
Entrepreneur Immigrant Visa: EB-3.
The EB-3 visa is a third preference employment-based green card for skilled, professional, or other workers.
- “Skilled workers” are persons whose jobs require a minimum of 2 years training or experience, not of a temporary or seasonal nature. The skilled worker must meet the educational, training, or experience requirements of the job opportunity. Relevant post-secondary education may be considered as training.
- “Professionals” are persons whose job requires at least a U.S. baccalaureate or foreign equivalent degree and are a member of the professions.
- The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training, education, or experience, not of a temporary or seasonal nature.
Parole Entrepreneur Rule.
The U.S. Citizenship and Immigration Service (USCIS) implemented the International Entrepreneur Parole (IEP). Applicant must show significant public benefits; this is, the substantial potential for rapid growth and job creation through innovative startups. The applicant must hold an ownership interest of at least 10% in a U.S. start-up entity created within the past five years that has substantial potential for rapid growth and job creation, and the applicant must play an active and central role in the start-up entity.
In addition, the start-up must demonstrate that it will provide a significant public benefit to the United States by showing that: 1) The start-up entity has received $528,293 in qualifying investment qualified government grants, awards or a combination of those fundings. 2) The start-up has created at least 5 qualified jobs with the start-up entity during the initial parole period; or 3) Reached at least $528,293 in annual revenue in the United States and averaged 20 percent in annual revenue growth during the initial parole period.
If approved, entrepreneurs are paroled into the United States for an initial period of 30 months and additional 30 months of parole may be granted, provided that the entrepreneur meets certain requirements.
At Tondini Law, we help startups, entrepreneurs, and individual founders in diverse industries and professions to achieve their American dream. There are several paths available for those who want to secure a U.S. visa to work in the U.S. for a fixed period or would like to pursue a green card. Our experienced U.S. business immigration attorneys at Tondini Law can assess your eligibility and determine the best immigration path for you, your family, and your employees.