Visa Pathways for Entrepreneurs, Part 2
New government policies may allow entrepreneurs to use the H-1B visa when they are starting a new business entity, even when they are the business owner. This can be a complex process with many requirements. For example, the entrepreneur’s position must require a Bachelor’s degree in a specialized field. Often an entrepreneur wears many hats, and it is important to demonstrate that the entrepreneur’s unique role meets the basic minimum requirements of a Bachelor’s degree. In addition, the entrepreneur visa applicant must demonstrate that there is an employer-employee relationship of control with the startup entity. This can be a challenging task requiring a skillful, experienced attorney.
Upon approval, the H-1B visa allows for an initial stay of up to 3 years. Extensions are possible in up to 3 year increments, with a maximum period of stay generally of 6 years, however extensions may be possible.L-1A Intracompany Transferee Visa
The L-1A visa is available for foreign managers or executives who seek to open or are transferred to a new branch, subsidiary, parent, or affiliate entity within the US. This can even apply for sole proprietor business owners. Generally, it is essential that the visa holder remain in an executive or management position with subordinate employees who perform the actual day-to-day business operations. However, these subordinates can also be independent contractors or consultants.
Not everyone is aware that for small but innovative entrepreneurial startups, there is a “New Office” provision, which allows some leeway for new business entities that do not yet have subordinate employees, but plan on creating a management position with subordinate employees within the first year.
The L-1A visa allows for an initial period of stay of up to 3 years, or 1 year for “New Office” petitions. Extensions are possible in up to 2 year increments. The maximum period of stay is 7 years for manager and executive visa holders.E-1 and E-2 Treaty Investor Visas
These visas are great options for foreign entrepreneurs who are nationals of countries who have treaties with the U.S. However, the vital and important countries of Brazil, China, India, and Russia currently are not included.
For E-1 visas, the applicant must demonstrate substantial trade between the applicant’s home country and the U.S.
For E-2 visas, there must be a substantial investment that the applicant has made in a U.S. enterprise. It is essential that a startup entrepreneur is able to demonstrate that their business model will produce more revenue than is needed only to meet the standard of living for the applicant and their family members. An E-2 visa applicant should seek the advice of an experienced attorney in drafting a detailed business plan.
The E-1 and E-2 visas allow for an initial period of stay of up to 2 years, and extensions are available in 2 year increments.O-1 Extraordinary Ability and Achievement Visa
This visa option is available for foreign nationals who possess extraordinary abilities in the fields of science, education, business, athletics, films, or television. An applicant may not self-petition, however the sponsor need not be an employer, and could even be an agent, manager, performance venue, or other party.
For entrepreneurs, the business entity owned and created by an entrepreneur itself may file the petition on behalf of the entrepreneur. For this visa, there is no required wage obligation, unlike the H-1B visa, and it is a dual-intent visa allowing the beneficiary to also pursue permanent residency. This type of visa can be complicated, and it is important to have experienced legal advice.
The O-1 visa allows for an initial period of stay of up to 3 years, and this may be extended in 1 year increments as necessary to further or complete the event or activity.What Challenges Will I Face in the Visa Process as a Startup Entrepreneur?
It is essential that an effective advocate understands the unique nature of a small business startup, in order to better articulate to the USCIS the unique benefits the entrepreneur will provide to the U.S. economy. Startups face unique challenges, and the USCIS will often closely scrutinize visa applications connected to small businesses and startups. The attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in successfully navigating through such complex areas. Contact us by email or phone at 1-877-479-4USA (4872) for a consultation to discuss your visa application and how we can represent your interests effectively.