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Visa Options for Entrepreneurs and Startup Companies

Visa Options for Entrepreneurs and Startup Companies

On August 5, 2015, the White House hosted its first ever Demo Day, inviting entrepreneurs and startup companies from across the country and comprising a diversity of backgrounds to attend and showcase their innovations1)In fact, MWR Legal is proud to recognize one of its clients, Student Loan Genius, as one of the companies that was invited to attend this unique event!. While this great event featured many immigrant entrepreneurs from Uganda, India, Guatemala, and Rwanda, it also served as a reminder for the critical need for reform to the current immigration system. As it stands, there is no clear pathway for entrepreneurs or startup companies to build their business, create jobs, and retain talented and driven people from around the world. Although certain aspects of reform related to border security and the handling of undocumented persons already in the country remain the subject of debate, part of any comprehensive immigration reform should include changes to the existing system to allow pathways for foreign entrepreneurs.

Immigration and innovation advocates, such as Fwd.us, continue to push for reforms and policies, including a dedicated “startup visa,” and in response, the Department of Homeland Security (DHS) has announced that, later this year, it will issue new policies that will clarify dedicated pathways for entrepreneurs who seek to start and grow their companies in the United States. Specifically, entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue within the United States will be eligible for temporary status or a green card.

While we await the new policies and regulations, entrepreneurs and startup companies must rely on the existing system to immigrate to the United States and start or grow their business. The following represents potential pathways for foreign entrepreneurs:

B-1 Business Visitor: This visa, which can be granted for up to 6 months at a time, allows for participation in business activities of a commercial or professional nature, including, but not limited to, securing funding, seeking investment, attending meetings, negotiating contracts, surveying potential office sites, and conducting research and customer interviews.

E-2 Treaty Investor: Citizens or companies from treaty countries who invest a “substantial amount of capital” in a U.S. enterprise may be eligible for this treaty investor visa. It is also available to key employees of investors. This visa can be approved for up to 2 years and can be extended.

H-1B Specialty Occupation: Generally requiring a bachelor’s degree or higher in a related field of study, this popular visa type is initially granted a 3-year period of stay. You can work for a business you start in the U.S. by establishing an employer-employee relationship with the company. Currently, this visa type has a congressionally mandated cap of 65,000 visas per fiscal year (with a carve-out for those possessing advanced degrees) that, because of the high demand for this visa, often requires a lottery to select those applications to be processed.

O-1A Extraordinary Ability or Achievement: Individuals who can demonstrate extraordinary ability by sustained national or international acclaim may receive a visa for an initial period of up to 3 years. This visa is intended for persons who possess a level of expertise indicating that the person is one of the small percentage who has risen to the top of the field of endeavor.

L-1 Intracompany Transferees: Executives, managers, and workers with specialized knowledge who have worked abroad for a qualifying organization for at least one year within the 3 years preceding the filing of the L-1 petition may qualify for this visa. You must be coming to the United States to work in one of the capacities listed above. This visa also allows for the creation of a new office in the United States. While new office petitions can be approved for up to one year, U.S. businesses that have been doing business for more than one year can have visas approved for up to 3 years.

EB-5 Immigrant Investor: Distinguishable from the E-2 Treaty Investor visa, which is a temporary visa, this category provides for resident status (i.e., a green card). It requires an investor to invest at least $1,000,000 in a new commercial enterprise, or $500,000 if the investment is made in a targeted employment area. The investment must create or preserve 10 full-time jobs for U.S. workers within 2 years.

There may be more visa opportunities available besides the ones discussed above if you are a student or already have a job offer from a U.S. employer, or are seeking to study, train, or intern in the U.S.

If you have any questions about whether you, your business, or an employee qualifies for a visa, or whether any of the proposed changes providing pathways for foreign entrepreneurs will affect you, contact us today for a complimentary consultation with an attorney to discuss.

LEGAL DISCLAIMER: This article is not intended to be, nor may it be used as, legal advice or tax advice.  This article shall be used solely for general, non-directed informational purposes.  No attorney-client relationship has been formed by virtue of this article and Moster Wynne & Ressler, P.C. has in no way agreed or consented to provide you with legal representation by virtue of this article.

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1. In fact, MWR Legal is proud to recognize one of its clients, Student Loan Genius, as one of the companies that was invited to attend this unique event!