By W. John Vandenberg

Yesterday we had a chance to look a little bit closer on options for entrepreneurs – those coming to the United States for the purpose of starting a new business.

The good news is there are quite a few options available.  But the bad news is that not a lot of them fit.

So, here’s a list of visas that may fit for an entrepreneur:

– E-1/E-2 Treaty Traders and Treaty Investors

– H-1B/E-3

– B-1/WB Business Visitor

– L-1A/B

– O-1A for Extraordinary Ability

– F-1 OPT

– EB-1 Extraordinary Ability

– EB-5 Immigrant Investor

– National Interest Waiver immigrant visa

There are a lot of choices here.  And only a good immigration lawyer can tell you what may fit, and what doesn’t.  This is an area where law becomes an art, not a science.  And having experience in immigration, embassies, and the USCIS counts can mean the difference between an approval and a denial.  And a denial means your losing time and money, and maybe status.

One of the most exciting pieces of news is that the embassies are viewing Treaty Investors and Treaty Traders more favorably.  If the applicant is from a treaty country, this may be one of the best areas to start.  U.S. Embassies, in contrast to the USCIS, are realizing the importance of attracting entrepreneurs.  So they are willing to grant the E-1/E-2 visas so long as the applicant has the funds at risk, have a good business plan, and meets the requirements as set out in the Foreign Affairs Manual.

The E category is also good because it fits for IT start-ups.  In particular, the E-1 deserves a hard look.  It is based on trade, which must be systematic and continuous.  So you don’t need a large dollar volume, as long as its systematic and continuous.  It depends on what your business is, and what your trading activities are.  The E-1 doesn’t require a substantial investment, unlike the E-2. It requires substantial trade between the United States and the treaty country.  “Substantial trade” between the treaty country and the United States means “greater than 50%.”  And remember – this doesn’t mean 51%; it means, by definition, 50% plus a penny.  And this can be either from the foreign entity *or* the U.S. subsidiary.  Meaning that even if the foreign company does less than 50% trade with the United States, one can set up a U.S. subsidiary and trade with that subsidiary.  And the U.S. subsidiary WOULD BE conducting “substantial trade” with the overseas company, and therefore makes the application approvable.

Trading in what?  Technology.  Commodities.  Services.  That’s all covered by trade.  Which means an IT start-up in the UK that sells services to the United States would qualify.  And that often-auoted $100,000 investment amount just doesn’t count!  You can be a lean start-up and then get your company off the ground in the United States, with the ability to travel back and forth as necessary.

We’ll delve into this in more detail in a future post, but for now it’s good to hear that Embassies are bullish on E’s!

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