Visa Options For Entrepreneurs

Most U.S. work visas involve a U.S. employer sponsoring a foreign national to work in the United States. However, immigration law also allows qualifying foreign nationals to obtain a visa to start their own business. There are limited visa options for entrepreneurs/business owners, and the process can be quite complex. An experienced attorney can help determine which visa is the best option.

U.S. Visas for Entrepreneurs

To attract entrepreneurs from around the world, the U.S. provides several ways for foreign citizens to get a visa, allowing them to start a business. The most common options include:

• International Entrepreneur Rule (IER). To qualify for a visa under the IER, the noncitizen must have substantial ownership (at least 10% initially and at least 5% for an extension) of the start-up business and a central and active role in the operations of the business. Further, the IER requires that the entity lawfully conduct business in the U.S., be formed within the five years immediately preceding the initial application, and have substantial potential for rapid growth and job creation in the U.S. 
• E-2 ‘Treaty Investor’ visa. This visa is available to a citizen of a foreign country that has a treaty of commerce with the United States. The individual must have invested, or be in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S. Additionally, the individual must have at least 50% ownership and operational control and must develop and direct the investment enterprise. (Note that it may be possible for an employee of the business to obtain this visa, as discussed further below.) 
• F-1 Optional Practical Training (OPT) visa. An F-1 visa allows noncitizens to enter the U.S. to study at an educational institution as a full-time student. Upon completion of their course of study, the student is generally granted one year of work authorization, known as optional practical training (OPT). The student may start a business with the OPT as long as they perform work directly related to their major area of study.

Using Employment-Based Visas as an Entrepreneur

In certain circumstances, entrepreneurs can obtain visas to work for a U.S. company as an employee. A key issue is the noncitizen’s level of ownership. Many work visas require the foreign national to have an employer-employee relationship with the sponsoring company. For some visa categories, including the H-1B, individuals who have a substantial ownership interest in the company may be deemed to have too much control to be considered a bona fide employee. On the other hand, it is possible for an individual with only a small ownership interest to qualify for an H-1B visa. For example, a partner at a large law firm who has a minor stake in the firm may qualify for the visa as an employee. The most common visas for employees include:

• H-1B visa. The H-1B visa can be a great option for many professional occupations. However, this visa is subject to an annual quota. In recent years, there have been many more would-be applicants than the number of available H-1B visas. Therefore, the immigration agency conducts a lottery each year to randomly select the individuals who may apply.
• O-1 visa. This visa is available to those at the top of their field in the arts, sciences, education, business, athletics, or motion pictures. Although the standard is quite high, the O-1 visa can be an excellent option for those who qualify.
• E-1 ‘Treaty Trader’ visa. In addition to being a good option for individuals seeking to invest in their own company in the United States, the E-2 visa is often used to employ foreign nationals who share the same nationality as the investor. In order to qualify for an E-2 visa as an employee, the individual must be employed in an executive/managerial position or a position involving essential skills.
• F-1 Curricular Practical Training (CPT) visa. Similar to OPT, discussed above, students with CPT may work off-campus as an employee of another business.
• L-1 Intracompany Transferee visa. An entrepreneur who has been employed for at least one year abroad in an executive/managerial or specialized knowledge capacity may qualify for an L-1 visa to work for a related company in the United States. In some cases, individuals who have a substantial ownership interest in the companies may nevertheless qualify for an L-1 visa if the organization is large and employs a substantial number of other individuals.

Obtaining Legal Guidance

If you are interested in starting a business or otherwise work in the U.S. as an entrepreneur, it is important to consult with an immigration attorney to evaluate your visa options and assist with the application process.

Please feel free to contact any of our attorneys to discuss which visa may be right for you.

NOTICE: Material provided on this website has been prepared by Kauff McGuire & Margolis LLP solely for general informational purposes, and it is not intended to and does not constitute legal advice. Material provided on the website is not privileged and does not create an attorney-client relationship with the Firm or any of its lawyers.