Publications

September, 2011

BUSINESS VISAS FOR START UP COMPANIES

New investors or traders who want to create a start-up company in the U.S. would be well advised to first come to the U.S. to locate where the business would be, and to seek to learn how business is handled in the U.S. as opposed to their country.
To come here to look around, most Europeans first come to the U.S. with visa waivers for 90 days. For other foreign nationals who do not fit into the visa waiver category, a B-1 business visa may be sought from a U.S. Consulate office in the applicant’s country. Admissions may be for one year with extensions allowed for 6 months.

TRADER OR INVESTOR VISAS (E-1, E-2)
For this Visa, the first step is to ascertain if one’s nation has a treaty of commerce with the U.S. If so, for the treaty trader visa, the applicant must substantiate that the business will be substantial and that the investment will be actively used in the company’s operation. Trade may include the sale of goods, services, international banking, advertising, accounting, communications, management consulting, and transportation to name just a few of the possibilities. At least 50% of the trade must be between the U.S. and the trader’s country. The trade must be substantial enough to ensure a continuous flow of business between the two countries. Smaller businesses are given special consideration in that the trade would be enough
if in the aggregate it will support the company’s operation.

NATIONALITY OF THE E COMPANY
At least 50% of the stock of the company must be owned by nationals of the treaty country. The majority stock holdings of the majority stockholders would determine the company’s nationality. These E companies may also employ key employees of its own country without limitation in addition to the principal stockholders. E status is given for accompanying spouses and minor children. Employees need not have worked for the company before, but they must have executive or managerial experience or have special skills needed by the company.

TREATY INVESTORS - E-2
The Treaty Investor must place the investment funds at risk and the money invested must already be committed when the application is made. The investment may not be passive and the investment must be substantial enough to ensure the successful operation of the enterprise. The directors and executives must be directly engaged in the business. Merely owning the stock is not sufficient for an E-1 investor. Factors that will be considered are expanded job opportunities, and generating income beyond merely making a living. The Treaty Investor must be a hands-on manager and not just supplying the working needs of the company.

TIME GRANTED FOR E VISAS
Usually the visa is granted for 5 years. The E visa may be renewed indefinitely in increments of 5 years as long as the business is active. If U.S. nationals abroad who are working as treaty traders are not granted 5 year increments by the country they are working in, then the USCIS will reduce the increments of time granted to equal what those country grant Americans.

SPOUSES AND CHILDREN OF E VISA HOLDERS
Spouses and children receive the same designation as the principal E visa holder. The spouse may obtain employment authorization, but not the children.

INTRA-COMPANY TRANSFEREES (L VISA)
If the trader or investor’s country does not have a treaty with the U.S., he/she may apply for an L Visa if the L requirements are met. Forming a corporation in the U.S. that is a parent, branch, affiliate or subsidiary of a U.S. company, is a way for an alien who has been employed for one of the previous 3 years for the parent, branch, affiliate or subsidiary to start-up a new business here. This alien may be transferred here with his/her family to work here as an L-1 visa recipient. The alien transferee must work in a managerial or executive capacity or in a specialized capacity. The job need not be full time, but services must be rendered regularly. The L-1's salary in the discretion of the company and there is no prevailing wage requirement.
When first applying to the USCIS for an L Visa employee, proof of the parent, branch, affiliate or subsidiary’s physical presence must be shown.

NATURE AND SIZE OF COMPANY
The parent, subsidiary or affiliate company here need not be in the same business as the affiliate abroad. The size of the company is immaterial, only that the company has a bonafide operation. There is no limitation to employing persons of any nation when a new office is formed here provided the employee has been employed abroad for one of the past 3 years by parent, affiliate or parent company.

The USCIS will only approve an initial application for one year. For an extension after the first year, the USCIS will consider the number of employees, growth in income, and the existence of clientele and a business plan.

Managers and executives may receive a maximum of 7 years and 5 years are given to employees with specialized skills. If the employee is performing satisfactorily, the company in the U.S. may apply for permanent residence for the employee. Managers and executives (L-1A) would be exempt from securing labor certifications; specialized skilled employees (L-1B) would have to obtain a labor certification to prove that the company cannot find qualified U.S. employees here and that the company is paying the prevailing wage for the job.

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New York Immigration Lawyers > Immigration Publications > September 2011