Foreign entrepreneurs who are interested in coming to the United States to start up a business may have several immigration pathways to choose from. There is a wide range of visas available that allow for either temporary or permanent immigration visa status, which may be available depending upon the specific circumstances of each case. These are broken down into two major categories: nonimmigrant visas and immigrant visas. Nonimmigrant visas allow for temporary stay in the US, while immigrant visas allow for permanent residence and can lead to US citizenship after five years. Often, a foreign national can begin in a nonimmigrant visa category, and then later adjust status to an immigrant visa category.
B-1 Business Visitor
Available for a limited time period of six months to allow business activities such as looking for office space, lease negotiation, business meetings, and other business related activities. However, receiving income from a US source (including salary) is not permitted, and the entrepreneur must prove that he or she has the intention to return to his or her home country abroad.
F-1/OPT Optional Practical Training
This option is available for full time students who are in the United States with F-1 immigration visa status who will work in a field directly related to the major area of study. OPT is authorized for 12 months with extensions available in some cases.
H-1B Specialty Occupation
An entrepreneur may qualify for the H-1B provided that the person has at least a bachelor’s degree, the person will work in a “specialty occupation,” and will receive a wage at or above the prevailing wage or actual wage for that occupation and geographical location. The H-1B is valid for a three-year period, with extensions available up to a maximum of six years in most cases. There are a limited number of H-1B visas that become available each fiscal year, so timing the date of petition filing is important.
O-1A Extraordinary Ability and Achievement
Available for those who can show they have risen to a level of extraordinary ability in their occupational field, that they are coming to the US to work in that field, and have a petitioning and entity that is a US employer, US agents, or for an employer through a US agent.
E-2 Treaty Investor
This visa is available for entrepreneurs who are a national of a country that has a qualifying treaty with the United States, who makes a substantial capital investment in a US enterprise, and has either 50% ownership or has operational control of that US enterprise. The visa is available in two-year increments with unlimited two-year extensions.
L-1 Intracompany Transferee
This visas is for an entrepreneur who is a manager, executive, or a person with specialized knowledge, is employed by foreign employer, has been working abroad for at least one year during the last three years, the person will start up a business that is related to the foreign employer, and will be coming to the US to open a new active and operating office for that employer. The period of stay is one year with extensions reaching a five-year maximum.
EB-1 Extraordinary Ability
This is available to an entrepreneur that has extraordinary ability in business, science, arts, education, or athletics, sustained national or international claim in a field of expertise, and is coming to the US to work in that particular field. In order to qualify, it would be necessary to have received a major internationally recognized award, such as the Nobel Prize. Or in the alternative, meet at least 3 of 10 specific criteria used to measure extraordinary ability.
EB-2 Classification and National Interest Waiver
This category is available for professionals who have an advanced degree or professionals with exceptional ability in the sciences, arts, or business. A labor certification is required unless it can be shown that the work is in the national interest of the United States. To qualify for the EB-2 Advanced Degree Professional, the person must have a (1) US master’s degree or doctorate degree, (2) a foreign degree that is equivalent, or (3) US bachelor’s degree or equivalent followed by a minimum of five years progressive experience. To qualify for the EB-2 Exceptional Ability, the person must (1) have exceptional ability to sciences, arts or business, and (2) can show that they will substantially benefits being US economy, cultural interests, educational interests, or US welfare.
If you are a foreign national and an entrepreneur interested in starting a business in the US utilizing any of the above immigration visa pathways, a competent and experienced immigration attorney can plan a strategy for you based on your specific circumstances and goals.