Two Visa Strategies for Foreign Entrepreneurs

The United States is known as the land of opportunity because it has one of the most fertile economies in the world, one that owes much of its success to the hard work of immigrants from all over the globe.  However, restrictions on visa availability—such as the H-1B cap—and often stringent visa requirements can be an impediment to foreign entrepreneurs starting their companies in the U.S.  Nonetheless, many companies that have had a profound impact on our lives were founded by immigrants, including: Google, Yahoo!, WhatsApp, Huffington Post, Red Bull, Tesla, and PayPal—to name but a few.  The optimal visa strategy for a foreign entrepreneur will depend on many factors, such as country of origin, nature of the business, and the current immigration status.  This article will touch on two visa categories that can be excellent options for a foreign entrepreneur: the E-2 Treaty Investor visa and the L-1A New Office visa. Each visa category has specific requirements, validity periods, renewability, and intent issues.  In addition, while every business is different, each one much satisfy the U.S. government’s prepackaged regulatory definitions to fit into these categories.

E-2 Treaty Investor Visa

The E-2 visa can be a great option for a foreign entrepreneur who wants to establish a U.S. company or purchase an existing one.  There are five main boxes to check to qualify for the E-2 visa: (1) existence of a relevant treaty between the U.S. and the applicant’s country of nationality; (2) the U.S. business must be at least 50% owned by nationals of the treaty country; (3) the applicant must have an intention to depart the U.S. at the end of E status; (4) an investment must be made in the U.S. company (whether it is new or existing); and (5) the applicant is the principal investor, manager, executive or has “essential skills.”

Existence of a Treaty

An E-2 nonimmigrant is defined in the Immigration and Nationality Act (INA) as a treaty investor entitled to enter the U.S. under and in pursuance of the provision of a treaty of commerce and navigation between the U.S. and the foreign state of which they are a national.  To qualify for the E-2, a treaty of Freedom, Commerce and Navigation (FCN) must exist between the U.S. and the country of the applicant’s nationality.  The current list of countries that have the treaties that give rise to the E-2 are listed here: https://travel.state.gov/content/visas/en/fees/treaty.html

Nationality

The E-2 has nationality requirements for both the U.S. business and the applicant.  The U.S. business must be at least 50% owned by nationals of the treaty country—which is determined by the nationality of the individual owners of that business.  Any interest in the U.S. business held by legal permanent residents from the treaty country or U.S. citizens holding dual nationality with the treaty country is not counted as ownership toward the 50% requirement.  The applicant must also hold the nationality of the treaty country.

Intent to Depart

One requirement for E status in an intent to depart the U.S. when E status ends.  This intent can typically be indicated through a written statement submitted with the E visa.

Investment

The E-2 Treaty Investor visa is based on an investment made in a U.S. entity.  There is no specific minimum investment level that must be shown.  However, our rule of thumb is around $100,000 should have been spent on the U.S. business at the time the visa petition is filed.  Unfortunately, no personal expenses, such as house rental, may be included in this amount.  In addition, one of the lynchpins for success in the E category is a persuasive five-year business plan that includes revenue projections and a hiring plan.

Applicant is the Principal Investor, Manger, Executive, or has “Essential Skills”

An E visa applicant may be the principal investor or an employee of the company.  A position will be considered managerial if the employee manages subordinate staff members and requires management skills.  A position is typically considered executive if the applicant will be controlling the direction of the entity.  A position is considered to require “essential skills” if the employee has years of experience with the company, years of specific experience that is not generally held, or has detailed proprietary knowledge of the company.

L-1A New Office

The L-1A New Office visa is available for a manager or executive coming to the U.S. to start an affiliate, subsidiary, or joint-venture of a foreign company in the U.S.  The employee must have been employed by the foreign entity for one consecutive year within the previous three years in a managerial, executive, or specialized knowledge capacity.  The most critical components to the L-1A New Office Petition are: (1) the business plan; (2) physical premises; and (3) ability to support a managerial position within one year.

Business Plan

For L-1A visa purposes, United States Citizenship and Immigration Service (“USCIS”) will want to see anticipated profits achieved by the new U.S. company in the upcoming years.  Including a financial table in the business plan that reflects anticipated profits, losses, and expenditures per year needed to establish the U.S. office is encouraged. Examples of expenditures are the purchase of equipment, software, computers, hiring outside support staff, paying employee yearly salaries, monthly rent for the U.S. office space, etc.  It is entirely reasonable that in the first year of operation net income will be zero or even negative. However, it is critical that the forecast reflects increasing profits as the five-year period progresses.  Moreover, where possible, integrate a listing of any outside sources or reasonable business assumptions to demonstrate that the anticipated U.S. company profits are realistic.  This information can be in list form in the business plan, or explained in a paragraph or page adjacent to the financial table.

Physical Premises

To satisfy the physical premises prong of the New Office L-1A, the space the new company will occupy should have a lease valid for at least one year, should be an appropriate space for the type of business, and should have sufficient space for proposed employees.  USCIS frequently requests color photographs of the inside and outside of the space, as well as photographs that include the entity’s name on the door.  USCIS will consider the business plan and analyze whether the space is appropriate.

Ability to Support a Managerial Position within One Year

USCIS puts particular emphasis on the new office’s ability to support an executive/manager after one year of operation.  Most of their concerns should be addressed in the business plan, but the petition should also include an organization chart and supporting documentation.  A significant piece of evidence will be a detailed job description that is reasonable and feasible.  One important item to note is that the L-1A new office visa will only be valid for one year, so the company should strive to achieve the benchmarks laid out in the initial petition to ensure a successful renewal.

L-1A vs. E-2

A major difference between L-1A and E-2 are the time limitations for each status.  The maximum period of stay for an E-2 is more flexible than the L-1A.  The L-1A New Office is issued initially for one year.  Extensions for L-1A beyond the initial period of stay are available in two-year increments for a total stay of seven years.  Once an L-1A visa holder has reached their maximum allowable period, they must leave the U.S. for a minimum of one year and must work for a foreign operation of the U.S. company before they are eligible to reapply for another L visa.  Alternatively, many L-1A holders opt to file for permanent residence in the U.S. before the seven years has expired.

By contrast, an E-2 visa holder is granted an initial period of stay of up to two years, although often a five-year visa will be issued, in which case the E visa holder will be granted a two-year validity period on each entry until the visa expires (the visa duration is dictated by agreement between the U.S. and the treaty country).  There is currently no limit on how many times an E visa holder can renew their E visa, so long as the U.S. business remains active and profitable.  However, E-2 status holders must declare they will depart the United States when the period of authorized stay (including extensions) terminates, as the visa is not intended for individuals planning to remain permanently in the U.S.

Pathway to Permanent Resident Status

L-1A status provides a relatively easy pathway to permanent resident status in the U.S., compared to many other employment-based non-immigrant statuses.  As the L-1A visa is a dual intent visa (unlike the E-2, as noted above), an L-1A status holder may apply for permanent resident status without worrying about preconceived intent issues.  In addition to being dual intent, a specific employment-based immigrant preference category for I-140 petitions was created for executives and managers that meet the L-1A standards that is much faster than the pathway to permanent residence for other statuses.

On the other hand, the path to permanent resident status from E-2 is not as easy as from L-1A.  Since E-2 visas are not dual intent, consular officers or the USCIS want to make sure E visa holders do not actually intend to enter the U.S. permanently. An E-2 visa holder, when applying for visa renewals, must prove to the USCIS that they intend to depart the United States when their legal status ends.

Application Process

For an L-1A visa, the employer must first send an L petition to the USCIS.  USCIS currently offers a “premium processing service” for L-1A petitions, whereby for an additional government filing fee of $1,225, a response will be received in fifteen days (otherwise processing time is currently about four months).  On occasion, additional information will be requested by USCIS, which can add about three weeks to processing time, but it is a relatively speedy process.  Once the L-1A petition is approved, the beneficiary attends a visa appointment at the U.S. Embassy to secure their visa.  Typically, appointments can be made within one to two weeks.  By contrast, while an E-2 petition can theoretically be filed with USCIS, we generally strongly encourage direct filings at the consulates as the consulates have special unit dedicated to reviewing E visa petitions.  However, in some circumstances, filing with USCIS using their premium processing service may be preferred.  E visa units at Embassies can take 8-12 weeks to review petitions, after which time the applicant will be invited to attend an interview.  After a successful interview, the visa is normally issued within about a week.

Conclusion

The E-2 visa and the L-1A new office visa are not the only options for foreign entrepreneurs, but they are two of the methods most commonly used by small and mid-size companies.  While these visa categories have been in existence for a long time, it is imperative to review current immigration regulations and policies before selecting the best visa strategy for specific immigration goals. In addition, advance planning when establishing your U.S. business will help ensure success, along with thorough documentation and experienced counsel.

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