10 Oct Entrepreneur Options in the United States as a Noncitizen… by Gabriela Salinas

O-1A Visa – Extraordinary Ability with Talent

The O-1A visa is available to a foreign national who has “extraordinary ability in the sciences, arts, education, business, or athletics . . . .” 8 CFR§214.2(o)(1)(i). The individual must either demonstrate a one-time achievement indicating that they are at the top of their field or satisfy at least three of the following criteria:

• Receipt of nationally and internationally recognized prizes or awards for excellence in the field of endeavor.
• Membership in associations in the field which require outstanding achievements of their members, as judged by experts in the field.
• Published materials about the individual in professional or major trade publications, or major media regarding the beneficiary’s work in the field.
• Participation, either individually or as part of a panel, as a judge of the work of others in the field.
• Original scientific, scholarly, athletic, or business-related contributions of major significance in the field.
• Authorship of scholarly articles in the field, published in professional journals.
• Evidence that the beneficiary has been employed in an essential capacity for organizations and establishments that have a distinguished reputation.
• Evidence that the beneficiary has either commanded a high salary or will command a high salary, as evidenced by contracts or other reliable evidence.

International Entrepreneur Parole Program

This new program allows noncitizen entrepreneurs who show that their stay in the United States would provide significant public benefit through their business venture. Entrepreneurs will be allowed to work only for their start-up business and must meet the threshold requirements below:

• Entrepreneurs may be either living abroad or in the United States.
• The start-up business must have been formed in the United States within the last five years.
• Must demonstrate substantial potential for rapid growth and job creation by showing at lease $264,147 in qualified investments from qualifying investors, at least $105,659 in qualified government awards or grants.
• The spouse of the entrepreneur (not children) may apply for employment authorization after being paroled into the United States.
• The entrepreneur may be granted an initial parole period of up to 2½ years, a maximum of 5 years total.
• Up to 3 entrepreneurs per start-up can be eligible for parole under the International Entrepreneur Rule.

E-1/E-2 – Treaty Investors with New Business

For citizens of countries with trade treaties with the U.S., the E-1 visa is for those engaged in substantial international trade, while the E-2 visa is for those investing capital in a U.S. business. The maximum duration of stay is usually a 5-year visa with increments of up to 2 years each. To be eligible, you must:

• Be a citizen of a treaty country.
• For E-1: substantial international trade.
• For E-2: invested/investing a substantial amount of capital (usually at least $100,000 to $200,000).

EB-5 – Investors Green Card

Entrepreneurs and investors can apply for lawful permanent residence if they make the necessary investment in a commercial enterprise in the United States and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers. Applicants are eligible if they:

• Invest $1 million in a U.S. Company.
• Hire 10 full-time U.S. employees.
• Invest $500,000 if investing in a rural area.

EB-2 – Advanced Degree/National Interest Waiver (NIW) Green Card

This avenue is available for entrepreneurs and individuals who can demonstrate extraordinary ability or achievement in their field. Applicants must:

• Have a job that requires an advanced degree.
• Hold the required degree or its foreign equivalent.
• Show exceptional ability in the sciences.

L-1A – Intracompany Transferees with New Office

This classification allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one in the United States. To qualify, the employer must:

• Have a qualifying relationship with a foreign company and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States.

Additionally, the named employee must also:

• Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and

• Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

L-1B – Intracompany Transferees with Special Knowledge

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.

Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).

H-1B – Specialty Occupations with Job Offer

This nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. Key points include:

• The application of highly specialized knowledge and the accomplishment of at least a bachelor’s degree or its equivalent.
• A necessary employer/employee relationship.
• The founder must have greater than 50% stake in the startup.
• There is an annual lottery where you must be selected, or you could qualify for a cap exemption.
• The company must demonstrate the ability to pay the prevailing wage,
• Maximum duration of stay is up to 6 years total with extensions possible for green card applicants.

The intent of an H-1B is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

TN NAFTA Professionals

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The initial period of stay can be up to 3 years, if you wish to remain, you must seek an extension. Accountants, engineers, lawyers, pharmacists, scientists, and teachers are eligible to seek admission as a TN nonimmigrant. You may be eligible if:

• You are a citizen of Canada or Mexico.
• Your profession qualifies under the regulations.
• The position in the US requires a NAFTA professional.
• You have prearranged full-time or part-time job with a U.S. employer.
• You have the qualifications to practice in the profession in question.

B-1 – Visa Visitor with Plans

You may also be able to apply for a B-1 visa if:

• Participating in business activities of a commercial or professional nature in the United States
• Plan to remain for a specific period of time,
• Sufficient funds to cover the expenses of the trip and your stay in the United States.
• A residence outside of the United States that you do not intend to abandon.
• Admissibility to the United States.

The initial period of stay is 1 to 6 months and can be extended up to 6 months for a maximum of 1 year.

Resources

www.uscis.gov/working-in-the-united-states

Written by Gabriela Salinas, Law Clerk at KMD Law