It’s not exactly easy to get a visa that will allow you to come to the United States specifically for the purpose of starting a business. There are a few ways to get such a visa, but they’re not available to everyone. Let’s look at some visa categories and see how they can be used to start a business in the United States.
An E-2 visa is a type of temporary (“nonimmigrant”) visa that allows someone to work for an enterprise in which he or she has invested, or for an enterprise in which he or she is actively in the process of investing.
Before you get too excited, however, you should know that an E-2 visa is available only to persons who are nationals of a country that has signed a treaty of commerce and navigation with the United States. Not every country has. You can see a list of the countries with which the United States has an E-2 qualifying treaty at the U.S. State Department's website.
Your investment in the U.S. business must be "substantial." There is no minimum dollar amount necessary in order for the investment to be considered substantial. The government will examine each investment individually to determine whether it is substantial. Investment in a new business must be in an amount normally considered necessary to keep that type of business running. The investment should not be only to support you and your family, but rather it should create job opportunities for U.S. workers.
To receive an E-2 visa, you must be responsible for the development and direction of your investment. When you are investing in the business as an individual with others, you must have a controlling interest in the business.
Most E-2 visas are valid for either four or five years. The visa allows you to come to the United States, and each time you arrive you will be admitted for two years. There is no limit to the number of new E-2 visas or extensions you can get. However, if your business comes to an end, so does your E-2 status.
Some persons who start and manage their own business in the United States can obtain an EB-5 permanent resident visa ("green card"). You can also obtain the green card by buying and reorganizing an existing U.S. business, or by investing in an existing business without reorganizing or reincorporating if your investment results in a 40% increase in the business's net worth or number of employees. If you invest in a "troubled business," you can obtain the green card just by saving the existing jobs.
The minimum investment required is U.S. $500,000, so long as the business is in a "targeted employment area." Otherwise, an investment of at least $1,000,000 U.S. is required.
You must be engaged in the management of the business, either through day-to-day managerial control or through policy formulation.
You will have to submit a business plan that shows how jobs will be created. Your plan must show that at least ten jobs will be created within a two-year period that begins six months after you file your petition for EB-5 eligibility. An exception is made for investments in a "troubled business." In those cases, you must show only that the number of existing employees will be maintained at the pre-investment level.
If your petition is successful, you will be given a two-year “conditional” permanent residency. For you to receive an unconditional EB-5 visa, your business must create the promised ten full-time jobs for U.S. workers by the end of the two-year period.
The EB-1 visa is a permanent resident visa for persons with “extraordinary ability.” Usually this means someone with international acclaim or someone at the very top of his or her field of work. The person must be seeking to enter the United States to continue work in the area of extraordinary ability, and the person's entry into the United States must substantially benefit the United States in the future. Because an offer for employment in the United States is not required, the EB-1 visa can be used by someone to start a business.
There are other visa categories used mainly by employees that could be used creatively by someone to start his or her own business while working as an employee of that business. These include the L-1 visa for managers and executives of new branch offices of transnational companies, the temporary O-1 visa for persons with extraordinary abilities, and the H-1B for persons who work in a specialty occupation. Because you’re really stretching the boundaries of U.S. immigration law by attempting to use one of these visas to start a business, we recommend you consult with an experienced immigration lawyer before you proceed.
A B-1 visa for business purposes won’t allow you to stay and run your business, but if you need to come to the United States to investigate business opportunities or to prepare to open a business, you may use the B-1 visa to do so.
The Department of Homeland Security (DHS), under the Obama Administration, published the International Entrepreneur Rule (IER), which was scheduled to take effect on July 17, 2017. The IER established a new regulatory process and criteria for certain foreign entrepreneurs to be paroled into the country and seek U.S. investment to develop and grow businesses.
However, DHS under the Trump administration never granted any parole under the rule because it does not feel it is the appropriate vehicle for attracting and retaining international entrepreneurs and that it does not adequately protect U.S. investors and U.S. workers. At the end of 2018, DHS is in the final stages of publishing a notice of proposed rulemaking seeking to remove the IER.
