Starting and expanding a business can be both exciting and intimidating. This is amplified when you are starting or growing into a new country, with unfamiliar markets, consumers, suppliers, business customs and practices, and legal issues (tax, corporate, real estate, employment, etc.). For non-US citizens, there is an additional, initial hurdle to overcome when entering the US business place – immigration considerations. The US government has emphasized how important foreign entrepreneurship is to the US economy. This article identifies various immigration categories that may be available to foreign nationals wishing to start or expand their business into the US.
- L-1 Work Visa: In general, if a foreign national has a business outside the US for which s/he has been working for at least 1 year, and s/he opens a branch, affiliate or subsidiary of it in the US, he can apply for L-1 status. If s/he has been and will continue to be in a managerial or executive role, this status can be extended for up to 7 years, and allows for a relatively fast route to a greencard. Spouses can apply for work authorization as well.
- E-2 Work Visa: In general, foreign nationals from an E-2 treaty country (list here: https://travel.state.gov/content/visas/en/fees/treaty.html) who own at least 50% of a US business and spend a “substantial” amount of money to open and operate that business, can apply for E-2 status. The status can technically be extended indefinitely, but there is no clear route to a greencard. Spouses can apply for work authorization as well.
- H-1B Work Visa: In general, H-1B status holders cannot be self-employed. However, if the foreign national owns part of a US business (ideally less than 50%) and the terms and conditions of his/her employment is controlled by another entity or a Board of Directors (including the right to fire him/her), then the H-1B status could be an option. Because the US issues a limited number of initial H-1B’s each year, generally, applicants only have about a 30% chance of getting an H-1B and can only start their businesses on October 1st.
- H-4 EAD Card: In general, H-4 spouses (which are spouses of H-1B visa holders) can apply for an Employment Authorization Document (EAD) card, allowing them to be self-employed in the US, if their H-1B spouse either: (a) has an approved I-140 petition, or (b) is the beneficiary of a PERM application or I-140 petition that was filed at least 365 days before the expiration of his/her sixth year of H-1B status. The PERM and I-140 applications are parts of an employment-based greencard process.
- EB-1 Multi-National Manager Greencard: In general, if a foreign national manager or executive has a US branch, affiliate or subsidiary of his/her non-US company that has been operating in the US for at least 1 year, s/he can apply for a greencard to live and work in the US indefinitely.
- EB-1 Extraordinary Ability Greencard: In general, a foreign national with “extraordinary ability” in the sciences, arts, education, business or athletics can apply for a greencard and be self-employed. “Extraordinary ability” is a very high standard to meet and is designed for those who are demonstrated experts in their fields with original scientific, scholastic, artistic, athletic, or business-related contributions of major significance, shown by international/national awards, acclaim, publications, etc.
- EB-5 Investment Greencard – In general, a foreign national who invests $1 million (or $500,000 in a rural area or a targeted employment area) and creates 10 full-time jobs within 2 years of the initial, conditional greencard, can apply for an EB-5 greencard to run his/her business in the US.
- EB-2 Exceptional Ability with National Interest Waiver Greencard – In general, a foreign national with “exceptional ability” whose US business will greatly benefit the national interest can apply for an EB-2 greencard to run his/her business in the US. “Exceptional ability” is a high standard and means that s/he must have a degree of expertise significantly above that ordinarily encountered in the field. Similarly, showing that the business and employment is in “the national interest” is a very high standard to meet.
The information above is general. There are many considerations and additional rules to examine in deciding what options are available in any given situation. For more information about anything in this article, please contact Berin S. Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2016 Posternak Blankstein & Lund LLP. All rights reserved.
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