For the business-minded seeking to come to live and/or work in the U.S., there are several types of visas that enable aspiring and seasoned entrepreneurs to live and work in the U.S.
For example, entrepreneurs can take advantage of an E2 Treaty Investor visa, which I refer to as the “coveted visa” in my #1 bestselling book entitled FINDING YOUR SILVER LINING IN THE BUSINESS IMMIGRATION PROCESS (2017) (“Silver Lining”). The U.S. offers nationals of countries that maintain Treaties of Commerce/Navigation with the U.S. to enter the U.S. when making a “substantial investment” into the US through an existing or new Business, and ensuring that the business has an economic impact locally or nationally and is not “marginal” ie: is not just replacing the principals’ income; additionally certain “essential” employees may also be eligible for visas as well. The E2 is granted for a period of up to five (5) years (depending on reciprocity terms with the home country) , and is renewable indefinitely provided that the premises of the E2 continue to apply.
Like the E2, the E1 visa is another Treaty-based option, and is prefaced on “substantial trade” between the U.S. and the proposed beneficiary’s home country. The trade can be in the form of goods and/or services and, like the E2 visa, is granted for a period of up to 5 years and is renewable indefinitely. Many prospective visa applicants that engage in import/export businesses, run tradeshows and/or host events or operate coaching companies that do business across borders are great potential applicants to qualify for this visa, which I refer to as the “forgotten visa” in my SILVER LINING book.
Another potential alternative is the EB-5 Immigrant Investor visa, which has no nationality requirement ie: applicants can potentially be from any country so long as it is not restricted for some unrelated reason eg: political strife, currency issues, etc. and provided that the EB-5 quota has not been met ie: nationals from that country are subject to visa retrogression (retrogression occurs when demand for EB-5 exceeds supply, as each country is subject to annual maximums; currently, China and India are in retrogression which translates to significant delays in processing times). The EB-5 allows the investor, their spouse and children under 21 to obtain green cards by making an investment in a U.S. company (currently $500K or $1M depending on location, which amounts are subject to increase in the very near future) that they may either own or into which they invest passively, provided that said investment is correlated to the creation of at least 10 new, permanent, full-time jobs for legal U.S. workers.
Another option for entrepreneurs seeking access to the US is the L1 visa which allows a foreign company to transfer a senior manager or executive to perform senior executive or managerial functions at an affiliate or a subsidiary US company – the foreign company must have a qualifying relationship with the US company which is usually demonstrated through common ownership, but does U.S. operations do not necessarily have to be in the same line of business.
To select the best visa for a potential entrepreneur, the entrepreneur should consult with experienced immigration counsel is needed to ensure that they will meet or exceed all visa requirements for the applicable visa. At Investing Across Borders, we tend to recommend the E2 visa (if the applicant is from a country with which the U.S. has a Treaty) as it allows the most flexibility and unlimited renewals, provided that the business continues to qualify and meet the requirements (non-marginality, etc.). At the current time, however, the E2 does not lead to a Green Card; however, the E2 visa holder can use the original investment as the basis to increase the investment and job creation amounts to satisfy the EB-5 threshold, thereby qualifying for a Green Card.
Notably, in general, a foreign national does not need a U.S. visa in order to own a business or be an officer or director in a U.S. company, or even to hold a U.S. bank account; however, a visa will be needed to secure a Social Security Number and in order to WORK in that business and receive any kind or salary or similar remuneration. Thus, the entrepreneur will want to seek out a visa such as the E-2 treaty investor visa or via the EB-5 Investment program Green Card path.
Again, the best place to begin the qualification process is by discussing your options with an expert knowledgeable in immigration matters or an attorney who is familiar with both legal and tax implications of the visa application process. Investors can establish a U.S. entity or perhaps invest in a franchise in the US to establish eligibility for an E2 or EB-5 investment. They will likely require a USCIS approved business plan, again with the help of the right expert team, an easily overcome challenge. Then the qualified investor, with a qualified business plan, will enter into the application process under the direction and guidance of their expert immigration team.
A few of the key elements are as follows:
- E2 Treaty Investors must
- Be a national of a county that has an E2 Treaty with the US (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html)
- Must make a substantial investment (varies but recommended amount is $100,000.00 or more)
- The E2 company must be an active for-profit business and the beneficiary national must be directing or managing the company
- The investment must be invested and “at risk” (in the US)
- E1 Treaty Traders
- must be a citizen of a Treaty country.
- must come from a company that has the nationality of the treaty country, meaning the US entity must be at least 50% owned by persons/entities from the Treaty country (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html)
- trade must be substantial, meaning that there is a sizable and continuing volume of trade (general guideline is at least $100K/year)
- More than 50% of any international trade must be between the USs and the treaty country.
- Trade is defined as the international exchange of goods, services, and/or technology (can be combination). Title of the trade items must pass from one party to the other.
- Beneficiary must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the company.
- The EB-5 investor must:
- Make a minimum investment of $500,000 or $1M, depending on the location, in a new business *called a New Commercial Enterprise, such business must have been established in or after 1990
- Must create at least 10 permanent, full-time jobs (unless a troubled business, which offers alternatives based on various formulas)
- An L1 visa beneficiary must
- Work for a company that can establish the requisite qualifying relationship between the foreign and US entities
- have worked full-time for the foreign company at least 1 full year within the past three years
- be a sr. manager, executive or specialized knowledge employee in US company.