Visa Options for International Entrepreneurs

Dan Berger, Curran & Berger LLPMatthew Roy, New Atlantic Management Group, LLCAnish Sahni, T’09 EntrepreneurTiago Calheiros, T’09 EntrepreneurSusan Ellison, Office of Visa and Immigration Services

February 20, 2013

2013 will be an interesting year

USCIS is at least paying lip service

http://www.uscis.gov/portal/site/uscis/eir

To follow developments in Congress

www.competeamerica.org

- Google- LinkedIn- Facebook- Online articles

The InternetA tool for you, and for USCIS

unauthorized employment

Make sure your web presence only has authorized work!

Step 1: List all visa options available to you

Step 2: What are your long-term goals?

Step 3: Weigh the advantages and disadvantages of the different types of visas

Narrow down the list

The Big Questions •A. Can I start a US business?•B. Can I stay in the US?•C. Can I pay myself?•D. Can I hire a foreign employee?

Can I Start a US Business?

• Yes, visa status is not required to be a passive

owner, as in buying stock or owning real estate.

• Consult with corporate attorney or accountant regarding legal entity

Can I Stay In The US For My Business?

• Need legal status to remain in the US.

• During F-1 status, must have work authorization to be employed at the business

• OPT is most flexible time of F-1 status

• After OPT, need to find another status to remain in US for the business

http://curranberger.com/content/view/313/119/

Can I Pay Myself?

• Only if authorized by USCIS!

• Keep up a series of temporary visas until an opportunity for permanent residence arises

Key Visa Types

Treaty Investor (E-2) visa program

• The investment and the business enterprise must satisfy several criteria, BUT

• Consular Officers should be flexible, and consider the spirit of the program

• We believe the E-2 visa can be used broadly to enable entrepreneurs of many types

Treaty Countries

For more information on treaty counties, please visit:http://travel.state.gov/visa/fees/fees_3726.html

If the principal employer is not an individual, it must be an enterprise or organization at least 50% owned by persons who have the nationality of a treaty country

Basic E-2 Visa Requirements

• Nationality

• Investment must be substantial

• Real, operating enterprise

• Investor must have control of the funds, and investment must be “at-risk”

• Investor must have controlling interest, and intend to develop and direct the enterprise

• Enterprise must be more than marginal

E-2 requirements are NOT formulaic

– No minimum investment– No minimum number of employees– No limits on the size or type of business– Great deal of flexibility on HOW the investment funds

are deployed • At the same time, some of the requirements can be very

restrictive:– No flexibility on the nationality of the business,

investors, and employees– No flexibility on the ownership % and the role of the

investor applicant in the business

Building a Strong E-2 Case

• A client with these three things can potentially build a strong E-2 case:

1. An idea and the entrepreneurial drive to execute2. Access to a modest amount of capital3. Nationality of an E-2 Treaty country

• If you understand how the rules can be applied, you can advise your client on how to develop a strong E-2 case.

• You can also consider cases that you might have otherwise discouraged or avoided.

Conclusions

• Tell a compelling story – It is as much a sales pitch, as it is a legal case; convey the entrepreneurial spirit of the investor and the positive economic impact (local, regional or national)

• Presentation is important - The business plan and analytical cover letter must be concise, clear, organized, and easy to read (it is a LOT of information for the adjudicator to process…don’t make it any harder for them)

• Encourage your client to do things right, in spite of the extra effort required

E-1 visa – Treaty Trader

• Much less used than E-2

• For company that has substantial trade with the owner’s home country – goods or services

Other Temporary Visas

• H-1B – salaried position related to degree, heavily regulated

• L-1 - transfer from employment by affiliated company abroad

• O-1 – based on “extraordinary ability” in business or the subject of the business

• Free Trade Agreement – Canada, Mexico, Chile, Singapore, Australia – more to come

Spouses

• E-1, E-2,E-3, L-1, and J-1 status allow spouses to work in any field

• Spouse can also pursue permanent residence

Green Card Categories

Self-petitions

National Interest WaiverExtraordinary Ability

Immigrant Investor (EB5)

Green Card Categories, continued

Employer sponsored Labor Certification – for more established business not owned by employee

Multinational Manager – transfer from abroad

Outstanding Researcher

Green Card Categories, continued

Non-Employment Based Categories

Family sponsoredAsylumDiversity Lottery – October

Questions and Discussion