Law Office of Bonnie Stern Wasser
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Visa Options for Immigrant Entrepreneurs
By Bonnie Stern Wasser, Esq.
© 2007
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
Temporary Visas for Entrepreneurs
One of the most common visa categories for becoming an immigrant entrepreneur in the US is the E-1 treaty trader or the E-2 treaty investor. The E visa holder must be a national of one of the countries with whom the US maintains certain types of reciprocal trade and investment treaties or agreements, and the US Company must be primarily owned by nationals of that treaty country. Traders must be primarily involved in trade of goods or services between the US and the treaty company. Investors must make a “substantial” investment into a commercial enterprise. See http://www.bswasserlaw.com/evisas.html for a list of treaty countries.
Another visa commonly used by entrepreneurs who already have a business outside the US is the L-1 multinational transferee visa. Like the E visa, it is useful for executives/founders, managers and people with specialized knowledge or unique or essential skills such as proprietary knowledge of the company’s product or processes. L-1 visa holders must work for a year in one of the qualifying positions above for a US branch office, subsidiary, joint venture or affiliate of the company abroad in the three years before application for L-1 visa.
Yet another visa category is the O-1 for business people and scientists, artists, educators and athletes, who are of extraordinary ability or at the top of their field. They must show sustained national or international acclaim and meet at least three of a list of nine criteria. In addition, an advisory opinion from a peer group or union is required.
Many entrepreneurs get their start in the US as employees of US companies on H-1B professional or specialty occupation visas. While working they may develop new technologies or gain valuable experience that they later parlay into their own companies using the previously mentioned visa categories. H-1B visas, however, have been capped every year since 1996. In the last two years, private employers have had trouble hiring H-1B workers because the cap was reached even before the start of the current fiscal year. For the next fiscal year beginning October 1, 2007, applications may be filed beginning April 1, 2007. There are exemptions from the cap for some employees of non-profit, government research institutions, institutions of higher education or organizations affiliated with institutions of higher learning. These cases can be filed anytime. Many H-1B workers who create new products or processes directly or indirectly create additional jobs for US workers as these new products take off in the market place and staff is built up to support the new products or services.
Australian nationals have their own E/H hybrid visa called the E-3. It is very similar to the H-1B requiring a specialty occupation job to fill and a degree in a subject related to the job. The H-1B wage protection rules apply, but unlike the E-1/E-2 visas, the holder need not work for an Australian owned company. (See http://www.bswasserlaw.com/AustraliansE3.html for more information.)
Finally, many J-1 scholars and F-1 foreign students have made significant contributions to their fields, often developing new intellectual property rights. They may eventually switch to Es, Ls, Os or Hs depending upon meeting the qualifications. The categories mentioned above all concern temporary visas.
Permanent Residence for Entrepreneurs
Entrepreneurs seeking permanent residence (a pre-requisite to US citizenship) can immigrate through certain family members (parents and spouses who are US citizens or have green cards, adult US citizen siblings or adult US citizen children). Alternatively, company founders generally immigrate permanently either through the EB5 immigrant investor program (requiring $500,000 to $1 million invested and creation of at least 10 jobs for US workers), as persons of extraordinary or exceptional ability in their fields, or when their work can be shown to be of national interest or benefit. In these situations, a labor market test of available US workers is not required; nor is an employer/sponsor required. In addition, outstanding scholars in academia or in private industry may also immigrate without labor market tests. Generally, outstanding scholars and professors must have made substantial contributions to their field. Often, they have developed newly patented inventions or copyrighted works. They DO need employer/sponsors, however. There is also a permanent residence category akin to the L-1 multinational transferee mentioned previously once the company has been in business in the US for one year. Finally, H-1B employees and minority owners who have created new technologies may qualify as exceptional or extraordinary ability immigrants, or else they will need funds to invest in a new commercial enterprise. To immigrate otherwise, they will need their companies to sponsor them with a labor market test called “labor certification.”
In sum, there are several opportunities for entrepreneurial-minded immigrants to immigrate lawfully to the USA. Because of this, our country has managed to attract many bright and talented people who have made this country competitive globally, created jobs for US workers, and who have enriched our country in many different ways.
For more information about immigration legal services, contact Bonnie Stern Wasser at (206) 282-2279 or bonnie@bswasserlaw.com.
