Entrepreneurs who aspire to start a business in the U.S. have a number of options available to them. Edgecomb Law LLC supports the startup community and we enjoy helping entrepreneurs find creative solutions to the seemingly daunting challenges posed by the immigration system. Below is a list of avenues available to foreign workers and students who wish to create startups in the US - whether they are living and working here already, or planning to bring their ideas here from abroad. If you are an entrepreneur who would like to create a startup in the U.S. or expand an existing business in the US, please feel free to contact us to discuss your options. Edgecomb Law LLC has a nationwide immigration practice, which means that the firm works with immigration clients in the Boston area as well as throughout the United States and abroad.
B-1 Visas for Business Visitors
If you're living outside the U.S. and starting to put the wheels in motion to expand your company's business in the U.S., securing a B-1 visa can often be a good place to start. The B-1 allows entrepreneurs and other workers to travel to the US for brief visits to conduct limited business activities such as negotiating contracts, attending conferences, holding meetings and scouting locations. The B-1 visa might also be a good option for entrepreneurs with businesses abroad who envision a more limited role in the US for their companies. For multinational companies that already have a presence in the US and wish to expand it, there is an additional option known as the "B-1 in lieu of H-1B," which allows foreign workers to engage in a wider range of work activities during brief trips to the U.S. B-1 visas allow visitors either one or multiple entries to the U.S for brief periods of up to six months, with extensions available up to a maximum of one year.
F-1 Students and OPT Optional Practical Training for Entrepreneurs
Individuals who are studying full-time in the U.S. on F-1 student visas may be eligible for Optional Practical Training ("OPT") programs if the proposed training is directly related to their major program of study. F-1 students are permitted to engage in twelve months of full-time OPT for each level of study (undergraduate, graduate and post-graduate). Students may complete their OPT during their course of study, after completion of their course of study, or a combination of both. Additionally, students who graduate from a course of study in science, technology, engineering or mathematics ("STEM") may apply for a seventeen-month extension of their post-completion OPT. Significantly, USCIS recently confirmed that F-1 students participating in OPT are permitted to start a business in the US and even serve as the sole employee of the business, so long as the business directly relates to their major course of study. Student entrepreneurs can later be sponsored for H-1B visas by their companies, so long as they satisfy all of the other requirements of the H-1B program (discussed below).
H-IB Visas for Entrepreneurs who work in Specialty Occupations
If an entrepreneur holds a bachelor's degree or its equivalent, earns a wage from her company, and works in a specialty occupation which generally requires a bachelor's degree, she can be sponsored for an H-1B visa by her own company under some circumstances. To qualify for an H-1B visa, an entrepreneur who owns her own company must demonstrate that her work is controlled by others (such as investors, preferred shareholders or a board of directors). Specifically, the entrepreneur should be able to show that other participants in the company have the right to hire, fire, pay, supervise or otherwise control the entrepreneur's employment. Companies wishing to take advantage of the H-1B program should keep in mind that they must also demonstrate that sponsored employees will be paid appropriate wages pursuant to applicable labor and immigration regulations, and that H-1B visas are subject to an annual cap. Employers who are not exempt from the annual H-1B cap should plan to submit applications as soon as possible after April 1st, and approved employees will be permitted to begin work the following October. H-1B visas allow workers to remain in the U.S. for an initial period of up to three years, with three-year extensions available generally up to six years (additional extensions beyond six years are sometimes possible).
O-1 Visas for Entrepreneurs of Extraordinary Ability
Enterpreneurs who can demonstrate that they possess extraordinary ability in business, science, education, athletics or the arts can be sponsored for an O-1 visa by their own US company. To qualify for an O-1 visa, an individual must demonstrate that she has reached the top of her field at the national or international level. To make the case, the applicant must submit an advisory letter from an individual or group with expertise in the applicant's field attesting to the applicant's extraordinary ability (along with additional supporting evidence). Significantly, guidance issued recently by USCIS regarding immigration for entrepreneurs suggests that O-1 applicants will not be held to the same requirements regarding external control of employment that applies to H-1B applicants. These are largely uncharted waters but recent experience has shown us that entrepreneurs who own significant shares in their companies can sometimes be successful in applying for O-1 visas even where they do not attempt to demonstrate external control over the entrepreneur's employment. O-1 visas are available for an initial period of up to three years, which can be extended in one year increments as necessary so long as the applicant continues to engage in the activity covered by the initial petition.
E-2 Visa for Treaty Investors
The US has entered into treaties with a number of countries that allow nationals of those countries to invest in new or existing companies in the US. To qualify for an E-2 visa as a treaty investor, an entrepreneur must invest substantial capital in a US startup or in the purchase of an ongoing enterprise in the US. Qualifying businesses must provide a service or produce a product on an ongoing basis, and the business must result in substantial economic impact beyond mere upkeep of the investor and her family. The capital invested must be the investor's own money (in other words, it cannot be capital pooled from other VCs or angels). Additionally, the entrepreneur must demonstrate that she intends to direct and develop the enterprise. Operational control through a management position or an ownership stake of at least fifty percent of the company is required. E-2 visas are available for an initial period of up to two years, with extensions in two-year increments available.
L-1 Visas for Intracompany Transferees
L-1 visas are available for foreign or multinational companies that wish to transfer company managers, executives or workers with specialized knowledge to the U.S. to open a new office or work in an existing branch or affiliate of the company. Qualifying employees must have been working abroad for the sponsoring company for at least one of the three years preceding the filing of the petition, and the foreign company must continue to do business so long as the sponsored worker is living and working in the U.S. pursuant to the L-1 visa. If the L-1 worker is coming to open a new office in the U.S., the U.S. business should be active and operating within one year after the worker's arrival when the time comes for the company to request an extension of its L-1 worker's stay in the U.S.. The company must also acquire sufficient physical space to do business prior to requesting an extension of time for the L-1 worker. Guidance issued recently by USCIS regarding immigration for entrepreneurs suggests that L-1 applicants will not be held to the same requirements regarding external control of employment that applies to H-1B applicants, but this assumption has not been widely tested by practitioners. L-1 visas are available for an initial period of stay for up to three years for workers transferring to existing US offices and up to one year for workers transferring to open a new office. Extensions are available in two-year increments up to a maximum stay of seven years for executives or managers or five years for workers with specialized knowledge.
Green Cards for Entrepreneurs
In addition to the categories of nonimmigrant visas listed above, under some circumstances an entrepreneur may be eligible to obtain an employment-based green card, which confers permanent resident status and allow a direct pathway to citizenship after a period of five years of residence in the US. In the case of entrepreneurs, the usual rules regarding self-sponsorship for green cards apply: entrepreneurs who apply for green cards based on their extraordinary ability or contribution to the U.S. national interest can generally self-sponsor, while others must generally be sponsored by their employers and obtain a labor certification from the Department of Labor prior to applying. Department of Labor regulations prohibit the agency from issuing labor certifications to self-employed individuals. Obtaining a labor certification can be a major challenge for individuals who hold a substantial ownership interest in their company. In such a case, the company must show that the applicant's position constitutes a bona fide job opportunity that was held open to U.S. workers.