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US Visa Options for Foreign Businesses and Entrepreneurs

By Mohammad Ali Syed, Offt Kurman Attorneys At Law

The L intracompany transfer visa and the E treaty-investor and trader visas are excellent options for international businesses to expand operations in the US. Foreign businesses, regardless of nationality, can send executives, managers, and other workers to work for existing or new offces in the US under the L visa category. The E visa category is available only to businesses and nationals of certain countries that have treaties with the US.

The L-1 Intracompany Transfer Visa

The L-1 visa permits key professional employees to transfer from an overseas offce to an existing offce of a parent, branch, affliate, or subsidiary of the same company in the US, or to set up a new offce. The L-1A allows for a US employer to transfer an executive or manager. The L-1B is for an employee with specialised knowledge.

An intracompany transferee is someone who has been employed abroad continuously for one year (by the qualifying entity) and within the three years preceding their L-1 application and admission into the US. Individuals who take brief trips for business or pleasure (on B visas) will not be viewed as interrupting their one year of continuous employment.

Requirements for Eligibility

For eligibility, one must have:

  • One year of work experience with the same employer during the three years preceding the application;
  • Common ownership and control between the US and foreign entities;
  • Start-ups/new offces need to show strong business plans, and other evidence such as a lease for offce space, sales contracts, and copies of applicable business permits, etc.

Examples

  • Law firms overseas wishing to set up offces in the US can use the L visa category to set up new offces in the US. These do not need to be staffed by US lawyers as long as they are not providing legal services and are engaged in marketing activities.
  • Manufacturers of wine who sell wine to the US can set up marketing offces in the US.
  • Tech firms who develop IT products and service US customers.

The E Treaty-Trader/Investor Visas

The E-1 Treaty-Trader visa allows for a foreign national of a treatytrader country to be admitted into the US for the purpose of engaging in international trade. This visa is applicable to individuals or employees of a qualifying organisation or company who will be engaged in international trade. Trade to be considered for this category includes both physical movements of goods or transportation and non-physical services (including banking, insurance, tourism, journalism, or technology).

E-1 Requirements for Eligibility

Individual

  1. They must be a national of a qualifying treaty country.
  2. They must show that they intend to engage in “substantial trade”. The US Citizenship and Immigration Services (USCIS) states that this generally refers to “the continuous flow of sizable international trade items, involving numerous transactions over time”.
  3. They must carry out “principle trade”, meaning at least half of all trades are between the US and the designated treaty country.
  4. They must prove intent to return to their home country at the end of the visa.

Employee

  1. They must be the same nationality as the principal employer and the principal employer must have the nationality of a qualifying treaty country.
  2. They must meet the definition of an “employee”.
  3. They have a supervisory or managerial role that requires specialised knowledge or skills.
  4. The employer must be either in the US on a current E-1 visa or, if applying outside of the US, they must prove that they can meet the E-1 qualifications.

E-2 Treaty-Investor Visa

One alternative to the E-1 Treaty-Trader visa is the E-2 Treaty-Investor visa. For those with significant funds to invest and from a treaty-trader country, this may be an option. There are two ways to apply for an E-2 Treaty-Investor visa. Those in the US on another status, such as a B visa, can file a petition with USCIS, while in the US, to change status to E-2. Those outside the US can petition for an E-2 visa through a US consulate. Instructions on how to do so are outlined on the website of the relevant consulate. Documentation to include is typically the same as those for filing in the US, however it is essential to check with the consulate to see if other documents are required. Visas are typically granted for two to five years.

E-2 Requirements for Eligibility

  1.  Must be a citizen of a treaty country.
  2.  Must have invested or be in the process of investing funds and satisfy three criteria:
    a. Legitimate possession and control of funds. The funds to be invested must have been obtained lawfully. Examples of evidence include tax returns, bank statements, and documents to support source of money.
    b. Funds invested are subject to risk and loss.
    c. Start of business must be imminent. Although no work can be done prior to the visa approval, the business should be ready. This may include a signed lease, a business bank account, an established website, and having purchased everything needed to start the business.
  3. Applicant should be in a position to develop and direct the business. This also means that the applicant must have the appropriate education or experience necessary for the position and business.
  4. Investment must be substantial. The USCIS has not defined what “substantial” means and there is no set minimum or maximum amount.
  5. The investment and business cannot be marginal. There must be a business plan in place to show growth over a five-year period or that you plan to hire employees.
  6. The applicant must intend to return to their home country after the visa expires.

Examples

  • Korean restaurant in Washington, DC – E2 for principal investor, for essential employee chef, and for additional investor.
  • Israeli pharmaceutical company setting up US offce.
  • UAE-based plastics-recycling business setting up operations in the US.

Mohammad Ali Syed

Mohammad Ali Syed

GGI member firm
Offt Kurman Attorneys At Law
Advisory, Corporate Finance, Fiduciary & Estate Planning, Law Firm Services
More than 10 offces throughout the USA
T: +1 410 209 6400
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: offtkurman.com
 


Published: GGI Insider, No. 106, March 2020 l Photo: H_Ko - stock.adobe.com

 

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