What to Know About Getting an “Entrepreneur Visa”
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Immigrants have always been a driving force behind American growth and innovation. They now start a quarter of all new businesses in the U.S., according to the National Bureau of Economic Research, and in some states that figure goes up to 40 percent.
There is no such thing as an official “entrepreneur visa” under U.S. immigration law. The Obama Administration created the International Entry Parole Program designed to encourage immigrants to create startups, but the Trump Administration is rescinding the program, which never went into full effect.
Instead, there are a variety of visa options that would-be entrepreneurial immigrants can take advantage of. The two visa categories in which entrepreneurs may gain entry are those for immigrant investors — E-2 and EB-5 visas — and those for people of “extraordinary abilities”— EB-1 and O-1 visas. The E-2 is the closest visa to an “entrepreneur visa,” though there are quite a few restrictions on it that may make it tricky for entrepreneurs to obtain.
The U.S. immigration system is notoriously difficult to navigate, so don’t make any plans until you speak with a qualified immigration lawyer. But before you consult a lawyer, do some research about the nature of these visas and the application process. Here’s an overview.
Are you considering starting a business? Check out this guide to starting a business as an immigrant.
Types of visas
There are two major types of visas in the U.S.: immigrant and nonimmigrant visas. Immigrant visas put applicants on a track to permanent residency or Green Card status and eventual citizenship, while nonimmigrant visas are temporary, approved for a set number of years depending on the program. Nonimmigrant visas also must be renewed indefinitely.
Once you are in the U.S. on a temporary visa, it can difficult to switch to a permanent visa, so consider carefully which type you are interested in when deciding which visa program to apply for. Some visa types allow you to bring family members or business partners with you.
The visa types that may allow entrepreneurs to reside in the U.S. are investment visas and extraordinary ability visas. There are also a couple other options that don’t fit into these categories.
The E-2 is a nonimmigrant visa that can be obtained by nationals of countries with which the U.S. has a reciprocal commercial treaty. An E-2 visa applicant must make a sizeable investment in a company they are establishing in the U.S., which must be at least half owned by nationals of the treaty country. The owner(s) can be the applicant, a company in that country, or a group of investors of that nationality.
The applicant must present a five-year business plan and have put their investment “at risk,” which means spending some of it in the U.S. before they even apply for the visa. This can mean signing for a lease, purchasing office equipment, or hiring third-party providers to do business startup tasks, among other things. The business plan should include a plan to hire a number of U.S. employees, though this does not have to have been done by the time of application. The visa is initially good for a five-year period and can be renewed.
“If they have met the qualifications in terms of the investment dollars having the same nationality that they have, then it’s a very good visa for people to get,” said Susan Cohen, chair of the immigration practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. “But if they’re looking for U.S. venture capital or they think that the ownership of the company will shift quickly to a majority U.S. ownership, then it’s not a good visa for them.”
The EB-5 is a conditional visa that leads to permanent resident status for immigrants who make larger job-creating investments in U.S. businesses. This visa requires at least $1 million of investment (or half that in high-unemployment areas) and the creation of 10 full-time jobs. Applicants must prove that the funds are from a lawful source.
Extraordinary ability visas
The O-1 is a nonimmigrant visa dedicated to those who have “extraordinary ability in the sciences, arts, education, business or athletics, or has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.” This visa is obviously not open to all immigrant entrepreneurs, but those who qualify and want to build a business associated with that extraordinary ability will find this an option worth pursuing.
The EB-1 is an employment-based permanent visa for those with extraordinary abilities. Entrepreneurs who can demonstrate that they have won prizes, acclaim, recognition or other public praise, or that they played a leading role in distinguished organizations, can obtain this visa. No offer of employment is required.
The H-1B is a nonimmigrant visa that applies to high-level workers in in-demand industries such as tech. While this visa most often requires an employer sponsor, small business owners can sometimes self-sponsor.
The L-1 is a nonimmigrant visa that lets a U.S. employer transfer an executive or manager from an affiliated foreign office an office of the company in the U.S. If an entrepreneur owns a company abroad, has worked for that company for a minimum of one year, and has started a U.S. branch of the company, then that person can apply for an L-1 visa to transfer to work at the U.S. office. The U.S. office would have to be up and running with a team in place by the time of the visa application.
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The application process
Immigrating entrepreneurs have limited options for getting a visa to the U.S., and the path is complicated. You’ll need to make sure you’re applying for the most appropriate type of visa for your situation and that you have all the documentation together.
The process of gathering documents can be especially lengthy. For those applying for investment visas, collect all the relevant information about your business such as your business plan, financial statements, business licenses and funding agreements. Anything that will prove you’re hiring and building value to U.S. communities will help your case. For those applying for extraordinary ability visas, some of the documentation needed is designed to prove your distinction — this will be material that covers your eventful or distinguished professional career.
Each visa type also has official application documents that visa-seekers must submit. Applicants for E-2, O-1, H1-B and L-1 visas should submit Form I-129, Petition for Nonimmigrant Worker. Applicants for EB-5 and EB-1 visas should submit Form I-526, Immigrant Petition by Alien Entrepreneur. Other official documentation may also be required.
It’s essential that applicants don’t approach this process alone. A common question for those thinking of looking into these types of visas is whether or not they should hire an attorney, to which Cohen says yes.
“Before making any plans, it’s critical to have a consultation at least by phone with a competent immigration lawyer with success in doing these kinds of visas,” he said.
The bottom line
Entrepreneurs who want to get a visa to work in the U.S. have several options, though none of them are easy or totally straightforward. With the Trump Administration rolling back the program that was set to open up opportunities for foreign entrepreneurs, applicants will need to continue finding ways to fit existing visa programs to their circumstances.
For any of these programs, the requirements are specific and application process is lengthy, so make sure you have a knowledgeable professional on your side when exploring which visa might be right for you.