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Today's Date: December 10, 2013
 

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Immigration Opportunities for Entrepreneurs and foreign born founders of Start-up companies

 

Immigration Opportunities for Entrepreneurs and foreign born founders of Start-up companies

Overview 

The U.S. government has proposed
to attract the world’s best and brightest entrepreneurs to start the next great
companies in the United States. On November 28, 2012 U.S. Citizenship and
Immigration Services (USCIS), the Federal agency responsible for administering
visa programs, announced new resource for immigrant entrepreneurs, the
Entrepreneur Pathways, an online resource center which gives immigrant
entrepreneurs an intuitive way to navigate opportunities to start and grow a
business in the United States. Immigrant entrepreneurs have always made
extraordinary contributions to US economic growth and competitiveness, creating
jobs and new businesses all across the country. Immigrants started 25 percent
of the highest-growth companies in America, including iconic success stories
like Intel, Google, Yahoo, and eBay, which together employ an estimated 220,000
people within the United States. Entrepreneur Pathways explains, in plain
English, which existing visa categories might be available to that entrepreneur
under current law, and what evidence would be necessary to demonstrate
eligibility. Imagine that an entrepreneur from another country participates in
a start-up mentorship program in the United States, raises a first round of
funding from investors, and wants to stay here to grow the company and hire
more people.
 

Earlier the USCIS had started
a new initiative to harness industry expertise from the public and private
sectors that will increase the job creation potential of employment-based and
high-skilled visa categories. Called ‘Entrepreneurs in Residence (EIR)’, the
initiative builds upon a series of policy, operational, and outreach efforts
within the framework of existing immigration laws. This program supports the
White House and Department of Homeland Security’s (DHS’) efforts in growing the
U.S. economy and creating American jobs. The USCIS EIR initiative consists of a
tactical team comprised of outside experts working alongside USCIS staff.  The team developed and deployed a training
workshop for USCIS immigration officers focusing on the business realities of
early-stage companies, trained a team of specialized immigration officers to
handle entrepreneur and start-up cases, and ensured that the adjudication
process incorporates new types of evidence relevant to startup enterprises.

The US government is also
considering to create a “start-up visa” designed specifically for immigrant
entrepreneurs, as part of its vision for a 21st century immigration system.

A General Guide to Non-Immigrant and
Immigrant Visa Options for Entrepreneurs and foreign-born founders of Startup
Companies

Where
to begin?

If you are a foreign
entrepreneur and you want to start or run a business in the United States, you
must first obtain authorization from USCIS through the immigrant or
nonimmigrant visa process to live and work here. It is important to determine
upfront which visa classification works best for you. Not every classification
that USCIS administers will allow you to work in the United States. Most
nonimmigrant visa petitions are issued for a specific type of activity with a
specific employer.  When considering
which option may apply best to your situation and your desired activities in
the United States, it is important to plan ahead and keep in mind that there
may be a variety of options available to you.

There are number of visas for
foreign entrepreneurs to explore or start a new business in the United States.
If you are new to the immigration process, we recommend that you consult with
an immigration attorney.

Visa categories you might
qualify:

F-1
/ OPT Optional Practical Training

You may be eligible for
Optional Practical Training (OPT) if you are an F-1 student in the United
States and you seek to start a business that is directly related to your major
area of study.

Maximum
possible work authorization: An F-1 student may be authorized for up to 12
months of OPT, and become eligible for another 12 months of OPT when he or she
seeks another post-secondary degree.  An
F-1 student with a qualified Science, Technology, Engineering or Mathematics
(STEM) degree may apply for a 17-month extension of post-completion OPT. 

H-1B
Specialty Occupation

You may be eligible for an
H-1B visa if you are planning to work for the business you start in the United
States in an occupation that normally requires a bachelor’s degree or higher in
a related field of study (e.g., engineers, scientists, business professionals or
mathematicians), and you have at least a bachelor’s degree or equivalent in a
field related to the position.

Initial
period of stay in the United States: Up to 3 years. Extensions possible in up
to 3 year increments. Maximum period of stay generally 6 years (extensions
beyond 6 years may be possible).

B-1
Business Visitor

You may be eligible for a
B-1 visa if you are coming to the United States as a business visitor in order
to secure funding or office space, negotiate a contract, or attend certain
business meetings in connection with opening a new business in this country.
With this visa you can participate in business activities of a commercial or
professional nature in the United States, including, but not limited to:

      
Consulting with business associates

      
Traveling for a scientific, educational,
professional or business convention, or a conference on specific dates

      
Settling an estate

      
Negotiating a contract

      
Participating in short-term training

      
Transiting through the United States: certain
persons may transit the United States with a B-1 visa

Initial
period of stay in the United States: Generally up to 6 month. Extensions  possible.

O-1A
Extraordinary Ability and Achievement

You may be eligible for an
O-1A visa if you have extraordinary ability in the sciences, arts, education,
business or athletics, which can be demonstrated by sustained acclaim and
recognition, and you will be coming to the United States to start a business in
your field. Extraordinary ability means you have a level of expertise
indicating you are one of the small percentage of people who have risen to the
very top of your field.

Initial
period of stay in the United States: Up to 3 years. May extend or renew the
period of stay in 1 year increments as necessary to complete or further the
event or activity.

L-1
Intracompany Transferee

You may be eligible for an
L-1 visa for “intracompany transferees” if you are an executive, manager, or a
worker with specialized knowledge who has worked abroad for a qualifying
organization (including an affiliate, parent, subsidiary or branch of your
foreign employer) for at least one year within the 3 years preceding the filing
of your L-1 petition (or in some cases your admission to the United States) and
the organization seeks to transfer you to the United States to open a
qualifying new office in one of the capacities listed above.

Initial
period of stay in the United States: Up to 3 years (1 year for new office
petitions). Extensions possible in up to 2 year increments. Maximum period of
stay: 7 years for managers and executives; 5 years for specialized knowledge
workers.

EB-5
Immigrant Investor

Immigrant Investor Program,
EB-5, was created by Congress in 1990 to stimulate the U.S. economy through job
creation and capital investment by foreign investors. Under a pilot immigration
program first enacted in 1992 and regularly reauthorized since, certain EB-5
visas also are set aside for investors in Regional Centers designated by USCIS
based on proposals for promoting economic growth. All EB-5 investors must
invest in a new commercial enterprise. Commercial enterprise means any
for-profit activity formed for the ongoing conduct of lawful business
including, but not limited to:

  •      A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust or other entity, which may be
    publicly or privately owned

This definition includes a
commercial enterprise consisting of a holding company and its wholly owned
subsidiaries, provided that each such subsidiary is engaged in a for-profit
activity formed for the ongoing conduct of a lawful business.

Note: This definition does
not include noncommercial activity such as owning and operating a personal
residence.

Job
Creation Requirements

Create or preserve at least
10 full-time jobs for qualifying U.S. workers within two years (or under
certain circumstances, within a reasonable time after the two-year period) of
the immigrant investor’s admission to the United States as a Conditional
Permanent Resident.

A qualified employee is a U.S. citizen, permanent resident or other
immigrant authorized to work in the United States. The individual may be a
conditional resident, an asylee, a refugee, or a person residing in the United
States under suspension of deportation. This definition does not include the
immigrant investor; his or her spouse, sons, or daughters; or any foreign
national in any nonimmigrant status (such as an H-1B visa holder) or who is not
authorized to work in the United States.

Capital
Investment Requirements

Capital means cash,
equipment, inventory, other tangible property, cash equivalents and
indebtedness secured by assets owned by the alien entrepreneur, provided that
the alien entrepreneur is personally and primarily liable and that the assets
of the new commercial enterprise upon which the petition is based are not used
to secure any of the indebtedness. All capital shall be valued at fair-market
value in United States dollars.

Required minimum investments
are:

  • General: The minimum qualifying investment in
    the United States is $1 million.
  • Targeted Employment Area (High Unemployment
    or Rural Area). The minimum qualifying investment either within a
    high-unemployment area or rural area in the United States is $500,000.

A targeted employment area
is an area that, at the time of investment, is a rural area or an area
experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area
outside a metropolitan statistical area (as designated by the Office of
Management and Budget) or outside the boundary of any city or town having a
population of 20,000 or more according to the decennial census.

TN
NAFTA Professionals

The North American Free
Trade Agreement (NAFTA) created special economic and trade relationships for
the United States, Canada and Mexico. The TN nonimmigrant classification
permits qualified Canadian and Mexican citizens to seek temporary entry into
the United States to engage in business activities at a professional level.

Among the types of
professionals who are eligible to seek admission as TN nonimmigrants are
accountants, engineers, lawyers, pharmacists, scientists, and teachers.

Initial
Period of Stay, up to 3 years, and extensions possible.

E-2
Treaty Investor

You may be eligible for an
E-2 visa if you invest a substantial amount of money in a new or existing U.S.
business, and are from a country that has a treaty of commerce and navigation
with the United States or a country designated by Congress as eligible for
participation in the E-2 nonimmigrant visa program. For a list of treaty
countries, visit the Department of State.

Initial
period of stay in the United States: Up to 2 years.  May extend or renew the period of stay in 2
year increments indefinitely.

Business
Visitor under Visa Waiver Program

The Visa Waiver Program
(VWP) enables nationals of 35 participating countries to travel to the United
States for tourism or business for stays of 90 days or less without obtaining a
visa. Nationals of VWP countries must meet eligibility requirements to travel
without a visa on the VWP

Give us a call if you would like to discuss
one of these visa options which may be available to you, your business partners
or employees. 

 
   
   
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