» Business Startups

What classes of visa are available to entrepreneurs seeking to establish new businesses in the US?

Employment creation though entrepreneurship is a key consideration in formulation of US immigration policy. The law establishes both immigrant (permanent) and non-immigrant (temporary) visa classifications which permit foreign persons to establish business in the US. Permanent residency is available to persons investing $1 million in a new or reorganized business and committing to create ten new full time jobs within two years, (or in maintaining employment levels at troubled companies. The investment floor is reduced to $500,000 where the new business will be located in rural or high unemployment areas.

Non-immigrant treaty trader/investor visas are available to persons from countries which have entered treaties of friendship, commerce and navigation with the United States. These classifications require significantly lower capital commitments and reserve the option of later adjusting to permanent resident status. There are also circumstances in which an individual employed by a company in which he is an investor may enter the US to establish or operate a US affiliate.

What if I only want to come to the US to test the waters and secure funding?

Foreign nationals may enter the US under a business visitor's visa (B-1) for the purpose of laying the foundation for a new business venture and securing funding. The B-1 visa does not permit the performance of labor for hire, so compensation must come from a foreign source. The stay must also be temporary and the visitor be prepared to demonstrate that he maintains a permanent residence abroad he has no intention of abandoning.

How do I bring employees into the United States to work at the new venture?

As a baseline, all US companies are subject to the same obligations with respect to the immigration laws regardless of the owner's nationality. The law makes allowance for the need of foreign-owned companies and investors to bring non-US talent into the US who provide institutional knowledge and culture and who are most familiar with the business. Foreign firms establishing US affiliates may employ their non-US executives, managers and employees with specialized knowledge as intracompany transferees, which permits a stay of up to seven years. If the post becomes permanent, the US employer may petition forpermanent resident status for executives and managers on a streamlined basis.

If the US employer is a treaty trader/investor, it may employ persons of the same nationality in the sponsoring business, who may reside in the US for the same duration as the business principal.

Are there limitations on my ability to sell all or part of a company established in conjunction with a treaty trader/investor visa?

The treaty trader/investor status (E) requires ownership to be held by nationals of a country which has a treaty of Friendship, Commerce, and Navigation (FCN) with the United States. If the company is sold in its entirety to persons of nationality different than the E holder, the company would no longer qualify as an E sponsor for that individual. If a partial interest in the company is sold, it is possible to maintain E visa status provided that the E principal's investment interest continues to be "substantial." This varies considerably with the size of the principal's investment relative to the total value of the company.