Guest blog post by Rosanna Fox, Associate, Gibney, Anthony & Flaherty, LLP>>>>>>>
The difficulty in obtaining appropriate work authorization to operate a business in the US often comes as a surprise to entrepreneurs seeking to enter the US market. A foreign individual or entity seeking to start a business in the US, has several visa options, each with its own benefits and limitations:
- B-1 Business Visitor/Visa Waiver: Business visitors can use the B-1 visa to facilitate entry to the United States for certain limited activities including meeting with business associates and negotiating contracts. This visa category can be helpful for business owners in the initial stages of US establishment because it covers activities such as the incorporation of a US company and finding a business premises for lease. Citizens of visa waiver countries (including Australia and New Zealand) can use the Visa Waiver Program (VWP) to enter as business visitor without the need for a visa, if they are otherwise eligible for the VWP. It is important to note that a B-1 business visitor cannot engage in productive employment in the United States and cannot be on US payroll, therefore the business owner or manager will require work authorization before actually managing the US business operations.
- E-1/E-2 Treaty Trader and Investor: The United States maintains treaties of commerce and navigation with several countries globally including Australia, Japan, Taiwan, Philippines, Thailand, and South Korea. The E-1 Treaty Trader visa allows nationals of a treaty country (either individuals or organizations that are at least 50 percent owned by treaty nationals) to come to the United States to engage in international trade between the US and the treaty country. The E-2 Treaty Investor visa allows nationals of a treaty country (individuals or organizations that are at least 50 percent owned by treaty nationals) to come to the United States when investing a substantial amount of capital in a US business. For the E-2 visa, the investment can include funds or other assets and must have the objective of generating a profit. The capital invested must be “at risk”, meaning subject to a loss if the investment fails. Certain employees of E-1 and E-2 visa holders can accompany their employers in E visa classification, if they are also nationals of the treaty country and if they are either Executive or Supervisory employees, or those with essential or specials skills.
- L-1A New Office: Where an overseas entity seeks to establish a US office, it is possible to send a manager or executive to the United States as an intracompany transfer in L-1A visa status. The US petitioning entity must be an affiliate, subsidiary, parent or branch of the overseas company, and must have secured an appropriate physical office space and must show that the US office will support an executive or managerial position within one year of the approval of the petition. The transferring employee must have been employed as an executive or manager with the overseas entity for one continuous year within the three years preceding the transfer. The United States Citizenship and Immigration Services (USCIS) will scrutinize the corporate relationship (ownership documents) between the US and the overseas entities, the business plan for the new US office including financial and other business projections, the financial status of the US entity, the US lease agreement, and the managerial experience of the transferring employee and his/her anticipated US role. New office L-1’s are initially approved for just one year, but can be extended in increments of two years, up to a maximum of seven years, if it can be shown that the company supports the managerial or executive position.
- H-1B Specialty Worker: The H-1B visa for specialty occupations can be utilized by entrepreneurs working for their own companies in the United States, if an employer-employee relationship can be established and if the company has the independent right to control the foreign national’s employment. Bear in mind that the annual H-1B visa cap may limit the employment start date and, in practice, very small businesses can face hurdles in petitioning for H-1B status for employees.
- E-3 Treaty Visa: The E-3 visa is a treaty-based visa for specialty occupations available exclusively to Australian citizens. The application process is generally much more straightforward than the H-1B process because applicants can apply for the visa directly at a US Consulate abroad, rather than seeking pre-approval with the USCIS. Furthermore, while there is an annual cap on E-3 visas of 10,500 for each fiscal year, the E-3 visa category tends to be undersubscribed and in practice E-3 visa holders can apply for the visa throughout the year. However, as with the H-1B visa, an employer-employee relationship and the company’s control over the visa applicant must be established in order to qualify for this classification. Finally, as with the H-1B visa, meeting the eligibility criteria for E-3 tends to be more challenging for small businesses.
There are also a number of immigrant visa (green card) options available for entrepreneurs to permanently move to the United States. These include the employment-based, first-preference visa for multinational managers and executives, if the US employer has been doing business for at least one year, as an affiliate, subsidiary, or branch of the entity that employed the foreign national abroad. The National Interest Waiver under the second-preference immigrant visa category may also be considered, if the individual can demonstrate that their business endeavors will be in the interest of the United States. The EB-5 immigrant investor program may be an option for foreign citizens who invest either $500,000 or $1,000,000 (depending on the unemployment rate in the geographical area) in a commercial enterprise in the United States which creates at least 10 new full-time jobs for US citizens.
This immigration article is provided as general information by Gibney, Anthony & Flaherty, LLP and does not constitute and should not be construed as, legal advice. If you have any questions please contact Rosanna M. Fox (rfox [at] gibney [dot] com).