Giuseppe Scagliarini is an Immigration Attorney representing entrepreneurs intending to obtain visas to relocate or immigrate to the United States.
U.S. Immigration Law does not easily accommodate the visa needs of entrepreneurs and the reality of the modern business world, especially for start-ups, technology companies and and other companies adopting emerging business models.
Recent advancements in this sector hasve been modest, and include an “Entrepreneur Visa Guide” published by USCIS, recapping the requirements for current visa categories including E2 Visa for Treaty Investors, L1 Visa for Intracompany Transferees, O-1 Visa for Nonimmigrant Aliens of Extraordinary Ability, EB-2 National Interest Waiver (NIW) Immigrant Visa, EB-1 Visa for Aliens of Extraordinary Ability in the science, education, business, or athletics..
While the Entrepreneur Visa Guide is an useful starting place, it cannot be the substitute for the services of a skilled immigration attorney, and USCIS acknowledges that “There are a variety of options that may be available to you as an entrepreneur to come to the United States to start or expand a business. To plan accordingly for your particular circumstances, you should consider your immigration options as early as possible when conceptualizing your business plans and goals. To identify the visa pathways that are most appropriate for your circumstances and plans, it may be helpful to consult with an immigration attorney.”
When it comes to examining in depth the details of a possible visa petition for an entrepreneur, it is necessary to know all the practical implications of each choice, and attempt to best fit your visa and immigration plans.
For example, often the information available is not sufficient to determine the course of action of a start-up or a company with advanced patents in the technology or biotechnology fields, or not fully matured into a full-fledged company. Recent pronouncements in the NIW EB-2 Visa arena (after Matter of Dhanasar, AAO Decc 27, 2016), the publication of the Final Rule regarding Parole Status for International Entrepreneurs show some promise, however, much of these categories remain a minefield for the unwary of the unskilled.
Some of the Visa Option that an entrepreneur may consider are:
E1 Visa – Based on the continuous trade of goods or services between the U.S. and a Country with a treaty of Friendship, Commerce and Navigation with the United States. For E1 Visa purposes, the exchange of good must be already in place and documented, it must be substantial, but the number and frequency of transactions is sometimes more important than the absolute value of a single exchange.
E2 Visa for Investors – The E2 Visa investment must be substantial, non-marginal, the E2 Treaty Company must have the nationality of a country signatory of an E2 Visa Treaty with the United States of America, the funds must be at risk and not a speculative investment, and must not be derived from unlawful activities (“source of funds”.
L1 Visa for Intracompany Transferees may permit a company with a “qualifying relationship” with a U.S. parent, subsidiary, branch or affiliate, to transfer under a L1-A Visa Managers or Executives or under a L1-B Visa Specialized knowledge workers. Special rules apply for “New Office” L1 Visas when the U.S. entity has been in business for less than 12 months, with emphasis on the company resources, business plan, and organizational structure. Also, 12 months of “continuous” qualifying employment must have been matured by the L1 Visa holder before the transfer to the United States.
H-1B visas are sometimes available for entrepreneurs. See our article on H-1B visas. However, USCIS has taken the position that an “Employment Relationship” must be present in the context of granting an H-1B visa petition, and that the employment relationship may not be found if the alien beneficiary is the sole owner and has total control over the entity, i.e. there is no entity such a Board of Director supervising the H-1B visa holder. H1-B visas are much sought-after and routinely run out at the beginning of April, when the new fiscal year allotment of H1-B visa is awarded, usually by a random lottery held by USCIS.
EB-1 Immigrant Visa for Multinational Managers and Executives. While the requirements for this immigrant visas (i.e.”green card”) are deceptively similar to those for L1-As managers and executives, they are sometimes applied in a more stringent manner. Also, the L1 visa company must have been doing business in the United States for at least one year and must have the “Ability to Pay” the salary offered to the alien.
EB-1 Immigrant Visa for Aliens of Extraordinary Ability. While this immigrant visa is more commonly sought by artists, athletes, and scientists, it is conceivable that Extraordinary Ability in Business could be considered by USCIS in granting this type of immigrant visa. Please note that EB-1 Extraordinary Ability allows the alien to self-petition and does not require a sponsor. the EB-1 Alien must have an intention to continue to work in the area of his extraordinary ability.
EB-2 National Interest Waiver (NIW). For some time now, USCIS has been informally advancing the proposition that some alien entrepreneurs could qualify for a visa under the EB-2 NIW standard, which is reserved for Advanced Professionals or aliens of “Exceptional Ability”. This was for a long time frustrated by the so-called NYSDOT standard in place, which for many years required the alien work to be “national in scope”. This geographical requirement precluded work of local nature, but nationally important, to qualify. Think for example of a company working solely with a local hospital to conduct clinical trials to find a cure for autism, or cancer, or diabetes. This may not be of “national scope” but certainly has great intrinsic merit and potential to advance the national interest of the United States.
On December 27, 2016, perhaps not coincidentally, the Administrative Appeal Office (AAO) issued a precedential decision in Matter of Dhanasar creating a new logical framework to decided NIW Visa petition.
Under Dhanasar, which replaces NYSDOT, in order to gain NIW Visa approval the alien’s work must have intrinsic merit, be of national importance (no longer “national scope”, the NIW visa applicant but be “well positioned” to advance the proposed endeavor, and on balance it must be in the National Interest of the United States to waive the requirement of a job offer and of Labor Certification.
International Entrepreneur Parole – Final Rule. On January 17, 2017 USCIS has published a Final Rule for Parole of International Entrepreneurs who may not yet quality for for a NIW visa. The Rule will become effective in June 2017. While this is not a visa and does not confer status, it is expected to provide at least some relief to a subset of start-up entrepreneurs whose companies show promise to raise capital and rapidly grow in the United States.
These and other options must be weighted carefully by the alien entrepreneur before applying for a visa to the United States. The environment is challenging for both nonimmigrant visas (E1, E2, O1, L1 visas, and others) and for immigrant visas (EB-1 for Multinational Managers and Executives, EB-1 for Extraordinary Ability. EB-2 NIW, and so on).
The Immigration Law Office of Giuseppe Scagliarini can assist the international entrepreneur from the earliest stages of companies formation to the issuance of the appropriate visa classification.
We have substantial experience in immigration and visa law and will welcome the opportunity to put that experience at work for you.