What do Sergey Brin (co-founder, Google), Liz Claiborne (founder, company namesake), Andrew Grove (co-founder, Intel), Jerry Yang (co-founder, Yahoo!), and Elon Musk (CEO, Tesla) have in common?
They are all entrepreneurs who immigrated to the United States and helped to revolutionize the industries where they made their mark. Attracting remarkably talented people to the United States to invest and innovate is an ideal that transcends party lines, but it has proven difficult in today’s tumultuous political climate.
Work Visas for Entrepreneurs and Investors – E-2 and L Visa
There are two primary work visa categories used by foreign entrepreneurs to work in the United States – the E-2 visa and the L-1 new office visa.
The E-2 visa is a well-established avenue for foreign entrepreneurs to live and work in the United States. With a concrete business plan and a substantial personal investment, foreign entrepreneurs from E Treaty countries can open a business anywhere in the United States, in practically any field.
Perhaps the most limiting factor associated with the E-2 visa is that it is a non-immigrant visa and does not provide a path to permanent residence to the United States. The E-2 visa expires as soon as the business is no longer functional in the United States. In some cases, an investment can become so large that an investor qualifies for an EB-5 Visa. Investors who can show they invest $500,000 in targeted employment areas, or $1,000,000 in other areas, can become eligible for U.S. Green Cards under the EB-5 visa program.
While this limitation can be a major impediment, it is important to note the E visa can be renewed in perpetuity, for as long as the business is open.
The L Visa allows foreign companies to open a new office in the United States and transfer foreign employees to work in executive or management capacity for the company. Employees transferred on an L visa should be previously employed by the company for at least one year of the previous three-year period.
Additionally, both the foreign company and the US company must have a qualifying relationship (parent company, subsidiary, affiliate/sister company, branch office). You will have to show the relationship between the two companies. The foreign company can pay for the new US office (the investment does not have to come from applicant’s personal savings). Unlike E visas, the L visa is not limited to treaty countries.
L visa holders can apply for permanent residence in the United States. This path to citizenship is considered an advantage of opening a business in the United States on an L Visa.
Outside of the L and E Visa, there are two green card programs that may provide a pathway for self-employed individuals looking to bring their start-ups to the U.S.
Self-Petition Green Cards: A Viable Solution for Entrepreneurs
U.S. immigration law provides two routes to permanent residence that do not require sponsorship by a U.S. employer: the Extraordinary Ability petition and the National Interest Waiver (NIW). An individual can “self-petition” in either of these categories, meaning that they can request a green card from the USCIS on their own behalf. Although there is no job offer requirement for these categories, an applicant still must demonstrate that they are “coming to the United States to continue work in the area of expertise” in the case of the Extraordinary Ability petition, and must be “well positioned” to advance their proposed endeavor in the U.S. in the case of the National Interest Waiver.
While both pathways allow an individual to self-petition, the criteria for the Extraordinary Ability petition and NIW are very different. An entrepreneur’s specific background and career are important factors in determining which option is likely to be successful. For the Extraordinary Ability petition, the immigration regulations provide a list of 10 criteria than an applicant must use to show that they meet the standard for this category. Some of the criteria are more appropriate for the entrepreneur applicant, including demonstrating that they have played a “leading or critical role” for a distinguished organization, or have received media attention for their work. Other criteria are not as applicable, unless the entrepreneur has an academic background that is directly related to their current venture. For example, if an applicant did research for a Master’s or Ph.D. program that led to a product, software or other invention that is now being produced or commercialized by their company, they likely have a background that would fit multiple evidentiary categories for the Extraordinary Ability petition.
The National Interest Waiver is more open-ended regarding required evidence, which lends itself to entrepreneurs who may be earlier in their careers. An applicant for an NIW must show that their proposed endeavor in the U.S. has some sort of “substantial merit” and “national importance”, and that they are “well positioned” to continue their project in the U.S. An applicant’s education, specific skills and record of previous success are all ways to demonstrate that they will be able to continue their work and be successful in the U.S., along with showing that steps have been made towards their goal (e.g. their startup has been incorporated, they have a clear business plan, investors, potential customers, etc.).
Our country was built with the entrepreneurial spirit of generations of Americans – immigrant and native-born. Today’s foreign-born business and thought leaders hold a unique place in the future of the United States and its economy – and self-petition green cards are currently the most straightforward path to citizenship for these valuable entrepreneurs. FordMurray attorneys are happy to offer a complimentary consultation if you think you might qualify for a NIW or Extraordinary Ability petition – contact us today or download our 11-page Guide to Self Petition Green Cards for more information.
