US immigration laws allow foreign investors to come to the US and operate their businesses in several ways. Choosing the appropriate visa solution requires a study not only of the US regulations and their criteria, but also an in depth examination of the foreign national’s specific business circumstances, amount of investment, and most importantly, his or her long term goals and objectives.
I.) THREE NON-IMMIGRANT VISA SOLUTIONS
Generally these visa solutions allow a foreign national to come to the United States, operate his or her business and remain in the United States so long as their businesses are operating.
Nationals of countries that have treaties designed to promote trade and investment between the United States and the foreign country can obtain visas to work temporarily in the U.S. These are called nonimmigrant E visas. There are two types of E visas; E-1 Treaty Trader and E-2 Treaty Investor. However, using the E visa category may not be appropriate due to the difficultly in converting it to permanent residence. E visas require the alien to demonstrate that he or she does not have intent to immigrate to the US. For that reason, our law firm often suggests the alternative use of the Intracompany transferee (L-1) visa category in order to facilitate an easier transition into permanent residence. It is important to note that each option carries pros and cons which must be analyzed in light of each individual circumstance.
(1) TREATY TRADERS (“E-1”) VISAS
E-1 visas are attractive for those aliens who wish to engage in a substantial volume of import and/or export with their treaty country. In order to qualify for the E-1 visa, the applicant must be a national of a treaty country undertaking a “substantial” amount of international trade. “Substantial” international trade means that the volume of trade must be sizeable and continuous. In other words, it must be sufficient to justify the trader being in the United States to manage the trade. Trade is defined as the international exchange of goods, services, and technology. There is no minimum level of trade which is considered sufficient, but the lower the volume of trade the less likely one is to qualify as a Treaty Trader. The trade must be principally between the United States and the treaty country (i.e. at least 50% of the trade must be between the U.S. and the country of the applicant’s nationality). Additionally, title of the trade items must pass from one party to the other. Finally, the applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
(2) TREATY INVESTORS (“E-2”) VISAS
This visa category is a good option if the alien desires to start a business in the US and there is not a qualifying corporate relationship between the new US enterprise and a foreign company (branch, parent/subsidiary, or a joint venture). If such a relationship exists, then the alien ought to consider the L-1 visa option below as it has an easier path to permanent residence. In order to qualify for the E-2 visa, the investor is required to come to the United States to develop and manage the operations of an enterprise in which the applicant has invested or is actively in the process of investing a “substantial” amount of capital. There is no set minimum level of investment. However, the higher the total cost of the enterprise is, the lower the requirement for total investment will be as a percentage of the total cost. The investor must also be coming to the U.S. to develop and direct the operations of the enterprise. Accordingly, the applicant is required to have more than fifty (50%) percent ownership of the investment (unless the applicant is entering the U.S. as an employee of the enterprise).
(3) INTRA-COMPANY TRANSFEREES (“L-1”) VISAS
The L-1 visa category is the most commercially feasible one when the alien ultimately desires to apply for permanent residence in the United States. This option would entail opening up a United States branch, subsidiary or affiliate company to the foreign company and transferring executive, managerial and/or specialized knowledge employees to the United States. Obviously this category is for serious businessmen and will not succeed on the basis of creating a shell or paper company. In addition, the foreign enterprise must continue to operate in the foreign country after the transfer of employees.
The L-1 visa is for a person who worked for a foreign company in an executive, managerial, or specialized knowledge capacity for at least one of the previous three years. There must be a qualifying relationship between the business entity in the United States and the foreign operation, i.e., a parent, subsidiary, affiliate or branch and the prospective employment in the United States must also be in a managerial, executive or specialized knowledge capacity. Finally, the petitioning company and the alien must intend that the alien come to the U.S. temporarily and return home at the end of the authorized stay. However, an alien may apply for permanent residency as an L-1 visa holder which would allow permanent residency in the United States.
One major advantage to the L-1 visa program is that it allows companies to apply for blanket L-1 status. If the company meets certain minimum gross revenue requirements, it can avoid filing individualized applications for each employee it seeks to transfer which can save the company significant time and resources. The alien would simply present a copy of the approval notice and apply at the U.S. consulate to obtain the L-1 visa stamp in their passport.
II. PERMANENT IMMIGRANT VISA SOLUTIONS
(1) MULTI-NATIONAL EXECUTIVES (“EB-1-3”) VISAS
The EB1-3 visas are employment based immigrant visa for foreign managers and executives of multinational companies. They are available for individuals who have been employed by a foreign company in a managerial or executive capacity for at least one year within the last three years and who are seeking work form a related U.S. company, i.e., a parent, subsidiary or affiliate in the same managerial or executive capacity. The applicant must meet the regulatory definition of a “manager” or “executive.” A “manager” is someone who manages the organization, supervises other managerial employees, and has the authority to hire and fire employees. An “executive” directs management of the organization, establishes the goals and policies of the organization, and possesses a wide range of decision-making power.
(2) ALIEN ENTREPRENEURS (“EB-5”) VISAS
The EB-5 Program entitles the qualified recipient to receive permanent residence status (“green card”) in the United States based upon investment in the U.S. The investor must invest $1M (USD) in the United States and create and maintain at least 10 U.S. jobs. The investment amount is lowered to $500,000 for investments in a “targeted employment area” which is an area that has experienced unemployment at 150 percent of the national average. The investment must be made in connection with a “new commercial enterprise,” by creating a new business, purchasing an existing business, and reorganizing or restructuring the business such that a new commercial enterprise results, or expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a “troubled business” (a business that has lost 20 percent of its net worth over the past 12 to 24 months). The new commercial business must also “benefit the U.S. economy.” The EB-5 Program allows for derivative green card status for spouses and minor children.
The Law Offices of Rose H. Robbins is based in Boca Raton, Florida but represents immigration clients all over the United States and all over the world. You may call us at: (954) 946-8130 or email us at rose <at> roserobbins.com.
You may also fill out the form below to begin to apply for your US Visa online now! We will get back to you to schedule a consultation to discuss your specific immigration needs.
We look forward to hearing from you!