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Immigration Options for Start-Ups and Entrepreneurs

Northeastern University’s announced opening of The Roux Institute in Portland has sent shockwaves of excitement through Maine’s tech industries – and for good reason. Northeastern’s cooperative education model leverages corporate partnerships to design curriculum that responds to business needs – helping ensure students have the practical and technical skills to thrive in the global marketplace of today and tomorrow.

As a graduate of Northeastern University Law, I can attest to the value of Northeastern’s emphasis on experiential education and workplace readiness. The co-op experiences offered during my time at Northeastern led me to immigration law, and particularly my passion for extraordinary ability immigration.

The Roux Institute is a great fit for Portland, where technology innovators have steadily laid down roots in order to attract employees who are looking for dynamic employment opportunities AND a great quality of life. While the Institute will provide Maine and New England’s technology and life science companies with a steady pool of qualified professionals, it will also produce graduates who have ideas they are ready to invest in on their own. With that in mind, I wanted to share information on how foreign entrepreneurs can use immigration law to start their own U.S. companies or invest in U.S. companies, and continue to live and work in the United States.

Immigration Primer for Foreign Tech Entrepreneurs

Entrepreneurs and investors have a few well-established avenues for launching a start-up or investing in an existing business venture in the United States. There are two main pathways to consider pursuing –permanent residence or a nonimmigrant visa. Many permanent resident, or “green card”, options can be sponsored by an employer, but there are a few categories that allow an individual to petition for themselves.  Nonimmigrant visas are provided on a temporary basis to a foreign national so they can work, study, or travel in the United States.

Employment-Based (EB) Self Petition Green Cards

Self-petition green cards, while highly coveted, have become increasingly difficult to obtain under the Trump Administration’s Buy American, Hire American initiative. With that being said, they are a viable option for those who can meet the very high evidentiary standards of the EB-1 and National Interest Waiver (NIW) categories, or the high investment threshold of the EB-5 Investment visa.

EB-1 – Employment-Based First Preference

An individual can self-petition for a green card under the EB-1A category for extraordinary ability. During the petition process, the applicant must provide evidence in three out of ten categories delineated by United States Citizenship and Immigration Services (USCIS) (https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1) and 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.

EB-1A cases for entrepreneurs require careful planning and strong evidence. In my experience, successful petitioners have had the background and career history in order to prove the following:

  • You played a leading or critical role for an organization
  • You received media attention for your work
  • You have an academic background that directly related to your current venture. For example: You contributed to the research or development of a product, software, or an invention that is now in production

In cases where an entrepreneur does not have an extensive work history, or is hoping to capitalize on leading edge technology that is yet unproven, the National Interest Waiver can be great option.

National Interest Waiver

The National Interest Waiver asks petitioners to provide evidence their endeavor in the United States is the national interest of the U.S., along with evidence they are well positioned to advance their endeavor. For these reasons, any steps an individual can take to show their start-up is ready to operate can help build a strong NIW petition. The strongest NIW cases for entrepreneurs will include the following:

  • Documents pertaining to the formation of the business. For a primer on business formation in the United States, click here.
  • Investment documents. Showing your business has the financial support of investors can serve as strong evidence that your work is the national interest of the United States.
  • Employment and compensation plan. Proof that you are ready and able to add jobs to the U.S. economy can help build a strong NIW petition.

In addition to evidence pertaining to the business endeavor, NIW petitioners should be ready to present evidence of their achievements and significant contributions to their industry or field by peers, government entities, professional or business organizations.

EB-5 – Green Card for Investors

The EB-5 visa program saw an overhaul in 2019 that nearly doubled the required minimum investment. Foreign nationals who hope to apply for the visa must invest a minimum of $900,000 in a targeted employment area (TEA) – defined as a rural area or area with high unemployment rate, or $1.8 million in non-TEA designated areas. The minimum investment criteria must be met with funds that can be traced directly to the beneficiary; it cannot be an aggregate of funds from other investors.

Additionally, the business is subject to job creation requirements – an investor must show they will invest the capital necessary to create full-time positions for at least 10 qualifying employees. If the investor is taking over a business, they must show the number of employees will be maintained for at least two years.

EB-5 holders can petition for a green card for themselves, their spouse, and dependent children under the age of 21, and is open to investors from any country.

E-2 Investor Visa

E-2 visas have proven to be an attainable pathway to work and live in the United States for many entrepreneurs, if they are citizens of E visa treaty countries. Additionally, established businesses can use the E-2 visa to hire foreign employees if the company is 1) majority owned by an individual from a treaty country, 2) registered with the U.S. Embassy in the owner’s home country and 3) intends to hire employees who share the owner’s nationality, and will serve in an executive or management capacity, or perform work vital to the company’s operation.

While E-2 visas are nonimmigrant visas – they do not provide a pathway to permanent resident status in the United States – the visa status can be extended by two-year increments in perpetuity for as long as the business is in operation in the United States.

Unlike EB-1A and NIW petitions, E-2 visas do not carry an evidentiary burden and investment criteria is more flexible than the EB-5 petition. It is critical, however, that E-2 investors show they have invested in the infrastructure their business needs to run, including the physical space, insurance, licensure, and equipment. Investors must show they can support employees and should have a business plan for sustained operations.

For investors from treaty countries, the E-2 visa can be a steppingstone to the EB-5 program. Once an investor reaches the investment threshold for the EB-5 Investor Visa, they can apply using their existing business and investment.

Complimentary Consultations

FordMurray is happy to offer complimentary consultations to foreign-born entrepreneurs interested in starting a business in the United States. We can help you explore the best option for you and make recommendations in case you need to build evidence for your case. Contact us today to talk with an attorney.