U.S. immigrants are about twice as likely to become entrepreneurs as native-born Americans. They make up around 13% of the population, yet represent 27.5% of all American entrepreneurs. Immigrant-founded top venture-backed firms have created an average of 150 jobs per company and include several household names such as Google, eBay, Yahoo, Nordstrom, AT&T, Procter & Gamble, and Goldman Sachs. In 2012 alone, a quarter of all tech and engineering start-ups had at least one immigrant cofounder, employed over 560,000 workers and generated $63 billion in sales. >> Study: Immigrants Founded 51% of U.S. Billion-Dollar Startups While many immigrants have found great success in the United States, the already uncertain path of entrepreneurship is exceptionally challenging for those learning to navigate the legal and cultural nuances of the American world of business. And even after an entrepreneur figures all that out, they still have to face the US immigration process.
Below are the 6 most popular U.S. visa options that are currently available for foreign entrepreneurs:
The number one skill of being a startup founder at this point is being an immigration attorney.— Aaron Levie (@levie) March 16, 2017
1. Entrepreneur H-1BThis visa is employer-specific, meaning approved applicants may only work for the specified employer referenced in the application. For entrepreneurs, this means that an employer-employee relationship between the must be demonstrated between the applicant and their business. Even if the individual has an ownership stake in his/her company, the company must be legally permitted to supervise his/her work and fire him/her if necessary. In order to prove a valid employer-employee relationship between an entrepreneur and his/her business, there are several options: 1) Maintain a separate Board of Directors with authority to control the individual’s employment 2) Present evidence of preferred shareholders, investors, etc. and establish their right to control the individual’s employment 3) If dealing with an LLC, provide for a separate manager with control over worker employment in the Operating Agreement Aside from establishing the employer-employee relationship, entrepreneurs in a start-up company need to keep in mind the other important considerations in order to qualify for H-1B. These are the normal considerations for any company sponsoring an employee for an H-1B visa.
2. L-1 Intracompany Transferee VisaThis visa works best for entrepreneurs who already have an existing business abroad and want to run an affiliate or new business in the United States. Under a subcategory of the L-1 visa, often called the “new office” petition, steps must be made towards establishing a footprint or presence in the United States. These steps include creating the business before applying such as incorporation, securement of office space, and a detailed business plan including financial forecasts and a personnel proposal. An important condition of the new office L-1 visa is that the business must be active and operational within one year. While this will vary somewhat by company, it usually means hiring new employees, fulfilling contract orders, holding inventory, having a revenue stream, etc.
3. E-2 Treaty InvestorE-2 visas are a possibility for those investing significant amounts in new or existing U.S. companies. Applicants must be native to a country that has a treaty of commerce with the United States or that has been deemed eligible to participate by Congress in the E-2 nonimmigrant visa program. To qualify, applicants must have proof of at least 50% ownership as well as operational control, such as a managerial position. The business must be shown to be able to generate enough income to make a significant economic contribution or provide a sufficient living for the applicant and his/her family. With this type of visa, it is also required that there is some degree of risk involved. This doesn’t mean that you need to be working in a highly regulated industry or competing against giant multi-national corporations. This is normal business risk that almost all businesses are subject to. Business risk is the possibility a company will have lower than anticipated profits or experience a loss rather than taking a profit. The investment must be firmly committed to the business with the chance of partial or total loss. The source of funds or investment is an important element of the E-2 visa application. Investment must funds must be proven to belong to the applicant, must be considered “substantial” when compared to the total start-up costs, and must be actively used by the business. The source of funds, the amount of investment and the use of capital are all important elements of an E-2 visa. Entrepreneurs applying for an E-2 visa should take extra care to ensure that these requirements are sufficiently met and presented in the correct way in their application.
4. O-1 Extraordinary Ability VisaFor applicants who are highly skilled, trained, experienced, or gifted in a particular field, the O-1A visa might be the best fit. Claims of extraordinary ability must be supported by public recognition. A qualified applicant must answer yes to at least three of the following questions:
- Have you received a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor?
- Are you a member of any associations which require outstanding achievements of their members as judged by recognized national or international experts?
- Is there published material in professional or major trade publications or major media about you which relates to your work in the field?
- Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
- Have you made original scientific, scholarly or business-related contributions of major significance?
- Have you authored scholarly articles in professional journals or other major media?
- Have you been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation?
- Have you or will you command a high salary or other remuneration for your services?