Ustun Law Group, PLLC

Start Up Visa Options for Immigrating Business Owners

by | Aug 12, 2021 | Blog

Immigration and Entrepreneurship

“While researchers often study immigrants as workers, a recent stream of scholarship emphasizes the role of immigrants as innovators and entrepreneurs. For example, immigrants currently represent about 14% of the U.S. workforce but account for closer to one-quarter of U.S. patents (e.g., Bernstein et al. 2019). Related, immigrants to the U.S. are also disproportionately likely to hold STEM degrees (Kerr and Kerr 2020)”

“Immigrants further appear to be highly entrepreneurial. Immigrants start firms at higher rates than native-born individuals in several countries (Fairlie and Lofstrom 2015), with recent evidence suggesting that approximately 25% of recent start-ups in the U.S. are founded by immigrants (Kerr and Kerr 2020)”.

If you are interested in reading the working paper, it could be found here

What Are My Options for Entrepreneur Visas in the USA?

There could be two options:

  • Extraordinary Ability Visas such as EB-1 or O-1
  • Immigrant Investor Visas such as the EB-5 or E-2

Please Note:

  • The O-1 and E-2 visas require you to return to your native country after operating a business
  • However, EB-1 or EB-5 visas are permanent residency visas

There are also Two Types of Visas for People Who Want to Immigrate to The United States:

  1. Non-Immigrant Visas
  2. Permanent Residency Visas
  • A Non-Immigrant Visa is easier to get than permanent residency visas, but you have to return to your country of origin if your business fails, or if you decide to close down the business
  • It is contingent on your business condition, hence not the best option for you if you want to stay in the USA for longer-term
  • Permanent residency visas, in contrast, allow you to secure a green card, so you can reside and work indefinitely in the U.S
  • These entrepreneur visas are a better option for people who want to settle down in the U.S. long-term
  • Examples of permanent residency visas include the EB-1 and EB-5

Who Is Eligible For EB-1?

“You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. You do not need to have an offer of employment. However, you must provide evidence showing you are coming to the United States to continue work in this area of expertise”.

Although the plain language of the EB-1 criteria may not look like a  viable option for business and its related fields, there are numerous ways to satisfy the minimum three required for classifications

The following conditions might be necessary but not sufficient:

1.   Original business contributions of significance:

  • If you can demonstrate and provide evidence that you have made a recognized advancement in business, finance, or economic practices, that accomplishment can form the cornerstone of an EB-1 petition
  • Achievements might include implementing new business models that have been recognized or proven effective, pioneering new enterprises that are acclaimed as significant professional endeavors, or making scholarly contributions to the research literature in your field
  • If you can show that your peers have emulated and integrated your ideas into their own business practices, you might have a possibility to demonstrate extraordinary ability

2.   Published material about you in the press:

  • This not only includes the popular media, but also discussion of you or your business in trade or scholarly periodicals
  • If your work has been the subject of case studies or academic review, that can satisfy this criterion as well

3.   Service In leading or Critical Roles for Distinguished organizations:

  • Time spent on the board of directors or in a leading financial or operational role for a distinguished organization or business may satisfy this requirement

4.   Authorship of scholarly articles and participation as a judge of the work of others are two relevant criteria

  • While ‘scholarly’ would seem to restrict applicants to authorship of papers in academic journals, the EB-1 comparable evidence clause leaves room for pieces published in trade journals as well
  • Evaluation of the work of others—be it as an outside consultant or internal supervisor—is another seemingly common activity that can support the claim that you are recognized as an expert in your field

5.   Commanding a high salary about others in your field or receipt of national or international prizes 

are concrete, objective criteria that might confirm both your recognized ability and standing as an expert in your field

Special Note:

  • The bar for EB-1 is pretty high
  • In the dearth of EB-1, the EB-2 National Interest Waiver (NIW) presents attractive opportunities for immigration based on endeavors in business or finance
  • In 2016 a precedent decision in this area called Matter of Dhanasar created an opening for entrepreneurs and finance professionals to pursue permanent residency based on their work

O-1 Entrepreneur Visa

  • The O-1 visa is similar to the EB-1 visa because both are reserved for highly qualified people
  • However, the bar is slightly lower for O-1 because this is a temporary, non-immigrant visa

Who is Eligible for an O-1 Visa?

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in:

  • Sciences
  • Arts
  • Education
  • Business
  • Athletics

It is also granted to a person who has achieved national or international accolades for a motion picture or television industry

There are three subcategories for this visa:

  1. O-1A: individuals with an extraordinary ability in the:
    •  Sciences
    • Education
    • Business
    • Athletics (not including the arts, motion pictures, or television industry)
  2. O-1B: individuals with an extraordinary ability in the
    • Arts
    • Extraordinary achievement in a motion picture or television industry
  3. O-2: individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance

O-3: is granted to individuals who are the spouse or children of O-1’s and O-2’s

  • To qualify for this entrepreneur visa, you still have to show extraordinary talent with similar evidence as EB-1, such as winning a business award or receiving media coverage
  • Although the O-1 is a temporary visa, you can renew it indefinitely as long as you’re operating the business
  • But, if your business fails or you decide you want to pursue other opportunities, you can’t stay in the U.S. any longer
  • These options for an entrepreneur visa in the USA might be a good fit for business owners that are very well known or have received a prestigious award of some kind
  • If top-tier investors invest in your business, then you might qualify for an extraordinary ability visa as well

Who Qualifies Under EB2 NIW (National Interest Waiver)?

  1. A foreign national who is qualified under the EB2 visa and
  2. A foreign national who passes the three-prong test in the Matter of Dhanasar decision:
  • The proposed endeavor is of substantial merit and national importance
  • Well-positioned to advance the proposed endeavor
  • A significant benefit for “national interest”

E-B2 For Entrepreneurs:

  • Small business owners can sponsor themselves under certain conditions. To self-sponsor, a company needs to have a board of directors or another external governance body
  • To qualify for this visa, you must hold an advanced degree, like a Ph.D., that’s relevant to your business. This is primarily an option for entrepreneurs in the health and science fields

Investor Visa

Investor visas allow entry into the U.S. in exchange for investing money into a business—the business can be your own—and creating jobs in the U.S. Fortunately, your investment doesn’t need to come only from your own savings. The money can come from a business loan, as long as the following requirements are met:

  • The loan is a secured business loan backed by personal assets of the investor that are located in the U.S. (e.g. a personal residence in the U.S.)
  • You must be the principal borrower and sign a personal guarantee on the loan
  • For investor visas, there are two options based on how much money you’ll be investing in the business

Changes to EB-5 Option

  • On June 30, 2021, United States Citizenship and Immigration Services (USCIS) updated its website to announce the changes coming to the EB-5 program over the period of suspension
  • The immigration agency will reject any Form I-924 petitions to set up a new regional center and Form I-526 petitions affiliated with a regional center EB5 investment, and processing on any currently pending such petitions has been halted
  • The announcement did state, however, that USCIS is still accepting I-829 petitions even for EB-5 investments affiliated with regional centers and that investors should continue to request evidence, notices of intent to deny (NOIDs), and other USCIS correspondence promptly
  • On July 1, 2021, the agency updated its announcement to add that it would no longer accept

I-485 petitions associated with regional center investments, either, even though overseas consulate processing is slated to continue

Note:

  • While the developments as of late are disturbing, they don’t spell the end of the world for the EB-5 program and the thousands of foreign nationals who have made EB-5 investments
  • Reauthorization is still likely in the future of the regional center program

 What is the E-2 Classification?

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the United States solely to develop and direct the investment enterprise
  • This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate devices

What is Considered as “Investment” In the Context of E-2?

  • Investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense to generate a profit
  • The capital must be subject to partial or total loss if the investment fails
  • The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity

Note: General Qualifications of the Employee of a Treaty Investor Is analogous to an Employee of a Treaty Trader

You can Find Out More about the E1 and E2 Visa here.

Applying for a startup visa or entrepreneur visa for the USA can take several months, even years. According to Ustun Law Group the length of time depends on the type of visa you’re applying for, the office that will be processing your application, Ustun Law Group, PLLC provides comprehensive immigration law services. Our clients range from companies, universities, and nonprofits to individuals seeking employment visas or permanent residency in the United States. Our goal is to help each client successfully navigate the complex rules of United States immigration law.

You can fill out this contact form and schedule your consultation with one of our attorneys, or

Schedule a Consultation 469-994-9407 to discuss your options.