Starting a Business as a Non-Citizen, Part ll (Work Visas for USA)
Published on 5/13/2014
Categories: Business, Federal Law, United States, Work Visas
This is the second installment of a series discussing the options for non-citizen business investors to obtain work visas for the USA. The following are a list of the most recommended visa options a non-citizen may apply for in order to work for the company he or she built:
Temporary Visas (More than one year duration)
E-2 (“Treaty Investor”): The E-2 visa is the ideal visa for a foreign national looking to start a business in the United States. The E-2 visa is available to non-citizens that invest substantial capital into a bona-fide enterprise in the United States. Substantial capital is a sufficient investment to ensure success. Also, a bona-fide enterprise is one that is operating and possesses an employer identification number, tax returns, financial statements, or other information that shows the legitimacy of the business. The E-2 visa allows the holder to work for their company, and spouses may also work after getting special authorization from the USCIS. This visa is initially granted in two year increments and possesses no maximum number for renewals. However, the E-2 visa is only available to nationals of a country that possess a certain treaty with the United States. The list of treaty countries is located on the United States Departments of State website at http://travel.state.gov/content/visas/english/fees/treaty.html. As of 2014, India, China, and Mexico do not possess such treaties with the United States.
L-1: The L-1 visa is ideal for a non-citizen who currently operates a business outside the United States and is looking to expand in the United States market. The L-1 visa allows a company to transfer an executive, manager, or individual with specialized knowledge from a foreign company to its affiliate in the United States. There are two main qualifications for an L-1 visa. First, there must be a parent company, branch, subsidiary, or affiliate relationship between the American and foreign offices. Secondly, the employer must be “doing business” in the United States for the duration of the L-1 visa. The USCIS defines “doing business” as the “regular, systematic, and continuous provision of goods and/or services by a qualifying organization.”
Also, the applicant for the L-1 visa must have worked for a foreign affiliate for one continuous year out of the three preceding years prior to the application date. The initial L-1 visa is valid for one year (if the visa holder is establishing a “New Office”) or three years (if there is an existing presence in the U.S.). This visa may be renewed for up to seven years. Moreover, the visa holder is allowed to work in a managerial or executive capacity and receive compensation accordingly. Spouses of L-1 visa holders may also work after the acquisition of employment authorization from USCIS.
H-1B: H-1b visas are United States employer sponsored visas for non-citizens who possess professional qualifications, and are being brought to the United States for a professional level position. H-1b visas are tied to the specific sponsoring employer; therefore, H-1b visa holders may not work for another employer without a new petition being approved by the USCIS. Without getting a petition authorized by the USCIS, a non-citizen would not be able to work for the new business without violating the terms of this visa.
Immigrant Investor: Conditional permanent residency is granted to individuals (spouses and unmarried children under age 21) who invest into a new commercial enterprise. The non-citizen must invest either $1,000,000 or at least $500,000 in targeted areas where there is high unemployment or a rural location. This enterprise must create and maintain ten full-time jobs within the first two years in order for the investor to maintain his or her residency. This Immigrant Investor green card would be ideal for a non-citizen looking to make a substantial investment in the United States.
Next week will we will publish the third part of this series. If you have questions about the formation of a business or immigration visas, please do not hesitate to contact our office.
By: Kenneth S. McLaughlin, Jr., Principal
Peter C. Markos, Attorney
Law Offices of McLaughlin & Associates, P.C.
NOTE: This publication should not be regarded as legal advice or legal opinion. The content is intended for general informational purposes only. If you have any concerns regarding anything in this publication you may contact your own attorney, CPA, or our law office at 630-230-8434, website www.ma-lawpc.com.
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