Visa Options for International
Entrepreneurs
Dan Berger, Curran & Berger LLP
Matthew Roy, New Atlantic Management Group, LLC
Anish Sahni, T’09 Entrepreneur
Tiago Calheiros, T’09 Entrepreneur
Susan Ellison, Office of Visa and Immigration Services
February 20, 2013
2013 will be an interesting year
USCIS is at least paying lip service
http://www.uscis.gov/portal/site/uscis/eir
To follow developments in Congress
www.competeamerica.org
The Internet
A tool for you, and for USCIS
unauthorized employment
- Google
- LinkedIn
- Facebook
- Online articles
Make sure your web presence only has authorized work!
Narrow down the list
Step 1: List all visa options available to you
Step 2: What are your long-term goals?
Step 3: Weigh the advantages and disadvantages
of the different types of visas
The Big Questions
•A. Can I start a US business?
•B. Can I stay in the US?
•C. Can I pay myself?
•D. Can I hire a foreign employee?
Can I Start a US Business?
• Yes, visa status is not required to be a passive
owner, as in buying stock or owning real
estate.
• Consult with corporate attorney or accountant
regarding legal entity
Can I Stay In The US For My Business?
• Need legal status to remain in the US.
• During F-1 status, must have work authorization
to be employed at the business
• OPT is most flexible time of F-1 status
• After OPT, need to find another status to remain
in US for the business
http://curranberger.com/content/view/313/119/
Can I Pay Myself?
• Only if authorized by USCIS!
• Keep up a series of temporary visas until an
opportunity for permanent residence arises
Key Visa Types
Treaty Investor (E-2) visa program
• The investment and the business enterprise must
satisfy several criteria, BUT
• Consular Officers should be flexible, and consider
the spirit of the program
• We believe the E-2 visa can be used broadly to
enable entrepreneurs of many types
Treaty Countries
 If the principal
employer is not an
individual, it must
be an enterprise or
organization at least
50% owned by
persons who have
the nationality of a
treaty country
For more information
on treaty counties,
please visit:
http://travel.state.gov/visa/
fees/fees_3726.html
Basic E-2 Visa Requirements
• Nationality
• Investment must be substantial
• Real, operating enterprise
• Investor must have control of the funds, and
investment must be “at-risk”
• Investor must have controlling interest, and intend
to develop and direct the enterprise
• Enterprise must be more than marginal
E-2 requirements are NOT formulaic
– No minimum investment
– No minimum number of employees
– No limits on the size or type of business
– Great deal of flexibility on HOW the investment funds
are deployed
• At the same time, some of the requirements can be very
restrictive:
– No flexibility on the nationality of the business,
investors, and employees
– No flexibility on the ownership % and the role of the
investor applicant in the business
Building a Strong E-2 Case
• A client with these three things can potentially
build a strong E-2 case:
1. An idea and the entrepreneurial drive to execute
2. Access to a modest amount of capital
3. Nationality of an E-2 Treaty country
• If you understand how the rules can be applied,
you can advise your client on how to develop a
strong E-2 case.
• You can also consider cases that you might have
otherwise discouraged or avoided.
Conclusions
• Tell a compelling story – It is as much a sales pitch, as it is a legal
case; convey the entrepreneurial spirit of the investor and the
positive economic impact (local, regional or national)
• Presentation is important - The business plan and analytical
cover letter must be concise, clear, organized, and easy to read
(it is a LOT of information for the adjudicator to process…don’t
make it any harder for them)
• Encourage your client to do things right, in spite of the extra
effort required
E-1 visa – Treaty Trader
• Much less used than E-2
• For company that has substantial trade with the
owner’s home country – goods or services
Other Temporary Visas
• H-1B – salaried position related to degree, heavily
regulated
• L-1 - transfer from employment by affiliated company
abroad
• O-1 – based on “extraordinary ability” in business or
the subject of the business
• Free Trade Agreement – Canada, Mexico, Chile,
Singapore, Australia – more to come
Spouses
• E-1, E-2,E-3, L-1, and J-1 status allow spouses to
work in any field
• Spouse can also pursue permanent residence
Green Card Categories
Self-petitions
National Interest Waiver
Extraordinary Ability
Immigrant Investor (EB5)
Green Card Categories, continued
Employer sponsored
Labor Certification – for more established
business not owned by employee
Multinational Manager – transfer from abroad
Outstanding Researcher
Green Card Categories, continued
Non-Employment Based Categories
Family sponsored
Asylum
Diversity Lottery – October
Questions and Discussion