Starting a business is the American dream. For foreign nationals, the fulfillment of this dream involves many more steps than just hanging a shingle. The path you take to launch your business depends upon a variety of factors and your ultimate goals. Let’s take a look at a few possibilities.

EB-5 Investor Program

The EB-5 Investor Program allows foreign nationals to invest at least $1 million in capital, or $500,000 if the company will create jobs in a targeted employment area (TEA). In both cases, the investor must prove that the company will create at least 10 full-time, permanent jobs for qualified United States workers.

The EB-5 Investor Program may be the right choice if you plan to quickly ramp up your workforce and are pursuing a green card. Your spouse and children that accompanied you to the United States are permitted to work, although they cannot be counted towards the 10 jobs requirement.

Conversely, your new business venture may not need $1 million startup capital or you may not have that much money at your disposal. Also, you may not even be interested in immigrating to the United States.  In that case, a nonimmigrant visa would be a more appropriate option.

E-1 Treaty Traders Nonimmigrant Visa

The E-1 Treaty Traders nonimmigrant visa allows foreign nationals of U.S. State Department designated treaty trader countries to conduct trade between that country and the United States. The trade must be substantial and the business’s principal trade, meaning more than 50 percent of the total volume of the company’s international trade must occur between the trader’s treaty country and the United States.

The first factor to consider is whether you are a national of a treaty trader country. If so, consider whether your new business will primarily conduct substantial trade in goods, services, transportation, tourism, technology, insurance, financials or news publishing between your home country and the United States.

Your spouse may file for unrestricted work authorization. The E-1 is also a dual intent visa if your ultimate goal is to one day pursue a green card.

E-2 Treaty Investors Nonimmigrant Visa

The E-2 Treaty Investors nonimmigrant visa allows foreign nationals of U.S. State Department designated treaty investor countries to invest a substantial amount of capital in a U.S. business. The foreign national must own 50 percent of the U.S. company or actively participate in operations and management of the company.

As with the E-1 visa, you should first consider whether you are a national of a treaty investor country. Although the code sets no minimum investment, you must invest a substantial amount of the capital needed to launch your new company and to ensure its success. A solid business plan should reflect your ability to generate profit within at least five years in order to overcome a potential argument that the enterprise is marginal.

Your spouse is permitted to apply for unrestricted work authorization and you may have a dual nonimmigrant and immigrant intent at the time you apply for your E-2.

L-1A and L-1B Intra-company Transferee 

L-1 visas allow foreign companies to transfer executives, managers and employees with specialized knowledge to a U.S. branch office, affiliate, subsidiary, parent or other entity with a relationship with the foreign company. In addition, the L-1 transferee may gain admission into the United States to launch such an entity.

If you currently work for a foreign company, you may be able to launch a related business as long as you are still employed by the foreign company that supports your endeavors. However, you would not be able to separate the two companies without violating your L-1 status.

Read Part 2 of this blog post, in which we explore other immigration considerations to launching a U.S. business, including what not to do and what you must know about hiring employees.

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice. 

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