No Visa for Foreign Entrepreneurs? Try the Next Best Thing

No Visa for Foreign Entrepreneurs? Try the Next Best Thing

Despite the US’s rich history as a haven for ambitious immigrants, many foreigners looking to work in the US have had to cope with increasingly restrictive immigration policies in recent years. As a result, the number of immigrant-founded startups in Silicon Valley has declined from 52.4% in 2005 to 43.9% in 2012.

Last year, many leaders in the tech and startup world lobbied for a “startup visa" that would modify the current EB-5 visa and allow immigrant entrepreneurs to receive a two year visa if a qualified U.S. investor was willing to invest in their startup venture.

Unfortunately, the proposed bill fell upon deaf ears and sits stale in all branches of government. Until a dramatic modification of US immigration policy is enacted, foreign entrepreneurs will have to jump through a series of old bureaucratic loops in order to work in the US.

E-visas, H-1B and L-visas are the most common ways to work in the US as a foreign national. To review qualifications and restrictions:

  • E-1 Visa. The E-1 treaty trader visa is a special designation geared towards businesspeople from select nations (ex, Canada, Mexico, and most European countries) who undertake a significant amount of international trade with the US. To qualify as a trader, at least 50% of the candidate’s exports/imports must be concern the US. The higher the volume of trade, the more viable the application will appear.
  • E-2 Visa. The E-2 investor visa is geared towards citizens of select nations who can prove an active investment with a substantial amount of capital in a bona fide enterprise in the United States. (The definition of "substantial" often causes confusion because it is not a hard and fast number or equation. However, a good rule of thumb is that an investment of $150,000 or more will be considered "substantial" and that any amount that is large as a percentage of total investment may qualify as well.) The candidate must be in the US solely to develop and direct their investment enterprise. It is valid for five years and the rights extend to your family.
  • EB-5 Visa.  The so-called “millionaire visa” allows foreigners to become legal permanent residents in the US through a substantial investment in the US economy. There are two paths: the Basic Program and the Regional Center Pilot Program. Both paths require a capital investment in a US enterprise of either $500,000 or $1,000,000, depending on the location of the investment.
  • H-1B Visa.This visa allows US employers to temporarily employ foreign workers in certain specialty occupations.  The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or its equivalent. Similarly, the foreign worker must also possess state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer. The duration of stay is three years, extendable to six years. An exception to maximum length of stay applies in certain circumstances: (1) if a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one year or three year increments until a decision has been rendered on their application for permanent residence; (2) if the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to their priority date not being current, they may be entitled to a three-year extension of their H-1B visa.
    • Transitioning out of H-1B.H-1B holders who want to continue to work in the US after six years, but who have not obtained permanent residency status, must remain outside of the US for one year before reapplying for another H-1B visa. Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H-1B portability or transfer, provided the new employer sponsors another H-1B visa, which may or may not be subjected to the quota. Under current law, H-1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
      • L-1 Visa.  The L-1 visa is geared towards intra-company transfers. However, if you have worked at a foreign company for one of the past three years, and your new enterprise is in the same industry as your former foreign company, you may be eligible for the L-1 visa provided that you were a manager or a specialized knowledge employee of the company.
      • OPT option. Aliens in the US on a student visa can legally work in the US for 12 months beyond their visa expiration. For students in STEM fields, this extends to 17 months.  

Lesser known visas include:

  • O-1 Visa. O-1 visas are geared towards people with extraordinary ability in the sciences, education, business, or athletics. This can extend to successful serial entrepreneurs from foreign nations.
  • EB-1 Visa. Along the same lines as the O-1 visa, an EB-1 visa is granted if you have an “extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager.” A grid of qualifications can be found here: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=17b983453d4a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=17b983453d4a3210VgnVCM100000b92ca60aRCRD.
  • E-3 Visa. This classification applies only to nationals of Australia coming to the United States solely to perform services in a specialty occupation. (In this way, the E-3 visa is similar to the H1B visa.) The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent. The E3 visa differs significantly from the H1B visa in that it is renewable indefinitely in two year increments, spouses of E3 visa holders can work in the US without restrictions, and there is a separate quota (10,500) for E3 visas that applies only to Australians.

The myriad of statuses and classifications that any one person can apply under makes the immigration process very intimidating. Our job at clearpath is to help elucidate bureaucratic jargon for the consumer’s benefit.

For more information about immigration, please visit clearpath’s immigration forum at www.aboutuscis.com and our website at www.iclearpath.com.

Michael Petrucelli, former acting director of US Citizenship and Immigration Service (USCIS), founded clearpath Immigration in 2008 after a career in civil service.

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