May 2016

IMMIGRATION OPTIONS FOR ENTREPRENEURSSTARTING A COMPANY

No Attorney-Client Relationship.  Not Legal Advice.

Dimo Michailov | Attorneydimo.michailov@cilawgroup.com@cilawgroup

Aleksandra Michailov| Attorneyaleksandra.michailov@cilawgroup.com@aleksmichailov

THE BAD NEWS…

AND THE GOOD NEWS…

“America remains a beacon of entrepreneurialism” … and there are still a number of good options for startups and entrepreneurs…

TOPICS COVERED TODAY

Picking the Right VisaHow to pick the best visa type?

Common Visa TypesEligibility and requirements.

Corporate StructuresOverview of common types.

Requirements to Work Rules about “working”

Questions and Answers…and discussion.

REQUIREMENTS TO WORK IN THE U.S.

Work Authorization Required

Visa Needed to Start Co.?

Taking Profits or Being on Company Payroll`

Working as Volunteer

COMMON CORPORATE STRUCTURES

01

02

03

Flexible and popular to foreign-based companies and investors But: tax/payroll implications for owner-workers and possible issues for H-1B visa sponsorship.

Limited Liability Company (LLC)

Available to foreign investors and owners. Popular for owner H-1Bs.

C Corporation

With minor exceptions, limited to U.S. individual shareholders and NOT available to foreign nationals.

S Corporation

Rules Vary by StateCan incorporate in one state, but register and do business in another.

CPA/Corporate HelpPlan for tax, structure and immigration issues together.

COMMON VISA TYPES

H-1B E-2 O-1 B-1L-1

H-1B FOR ENTREPRENEURS – MAIN ISSUES

01 02 03 04 05

Right to ControlOwnership, board of directors,

control over worker

Need for WorkerCompany must show it actually

needs the sponsored H-1B position

SalarySelection of position, prevailing

wage, ability to pay, actual payment of salary

H-1B CapProblematic unless already cap-exempt or

concurrent H-1B employment

ExistenceIssues specific to small or

new/startup companies; proving bona fide existence

H-1B FOR ENTREPRENEURS – HOW TO START?

POSITION & FUNDING•Title/Duties•Salary/Prevailing Wage•Company Finances•Need for Position

STRUCTURE & RIGHT OF CONTROL•One vs. Multiple Owners•Company Control•Minority Owner/Board of Directors

MISC. COMPANY•Office Space•Business Plan

E-2 INVESTOR VISA

National of “Treaty Country”Must be national of “treaty” country. China and India citizens are excluded but dual citizenship helps qualify.

SpousesEmployment authorization available to spouses

At Least 50% OwnershipThe employer must be owned at least 50% by a national of a treaty country.

Relatively Fast Process and Low Denial Rate *

Application process can be fast; and relatively low denial rate.

No Quota + Indefinite ExtensionsNo annual cap and extensions can be indefinite. Employees get transfer easily.

E-2 INVESTOR VISA – HOW TO START?

How Much to Invest?“Substantial” investment. Can include cash, expenses and IP value: patents etc.

Business Plan + Financial PredictionsCredible plans – business plan, financial projections, or prior tax/financial history.

Corporate DocumentsU.S. entity incorporation, ownership

Proof of Money TransferDemonstrate that funds already transferred, invested, or in the process.

Source of InvestmentDemonstrate source and ownership of funds invested.

Consular FilingApplication filed directly with US Consulate abroad (better) or with USCIS.

O-1 EXTRAORDINARY ABILITY VISA

Surprisingly Good Chances

Job Creation and Business Success

Self-Sponsorship and Sponsor Ownership OK

Must demonstrate “sustained national or international acclaim and recognition for achievements” or be at “top of the field”

Good Long Term Option: Indefinite Renewals

Applicable in Many Fields and Positions

O-1 VISA – HOW DO I QUALIFY?

Press or Recognition

Field or Commercial

SuccessLesser AwardsSignificant

ContributionAuthority

One-Time AchievementA major, internationally recognized award

OR

Meet Three Regulatory Criteria

L-1 INTRACOMPANY TRANSFER VISA

Work Abroad for OneOut of Last Three Years

Manager/Executive or Specialized Knowledge

Allows Founders to Relocate to U.S.

New Office vs. Established Presence

Foreign Company MustContinue to Operate

Helps with Growthand Staffing Overseas

Relatively High Denial Rate

B-1 VISA – VISITOR FOR BUSINESS

Startup GroundworkLay groundwork for startup & visa steps

Common UsesResearch, meetings, presentations, conferences

Temporary ActivityNo productive

employment for US co.

Six Months StayThree months for

Visa Waiver

No CompensationFrom US source.

Back-pocket LetterAt time of US entry to show purpose of trip

WHY NOT F-1 OPT/STEM OPT?

New STEM OPT Rule

Mentoring and Training Plan (MTP) eliminates

the option for F-1 students to run and work

for their own startup company.

PICKING THE RIGHT VISA TYPE FOR YOU

Applicant:

H-1B1 E-22 O-1 B-1 L-1A (Manager)

L-1B (Specialized)

Has Access to Capital Possible Best Unlikely Possible Unlikely Unlikely

Has Co. Abroad Possible Best Possible Best Best Best

Is an H-1B Worker Best Possible Possible Unlikely Unlikely Unlikely

Is Among the Best in Field

Possible Unlikely Best Unlikely Unlikely Unlikely

1 Must have cap H-1B or work concurrently for cap-exempt employer.2 Treaty country nationals only.

Q&A Session

Thank you!