Many foreign investors find the U.S. market to be their ideal place to invest, be it start-up of a new business, or buy-out of an existing business. Several important factors should be taken into consideration for such investment, including U.S. immigration options, tax consequences and corporate and employment laws. Please contact our firm to consult comprehensive and strategic planning of your U.S. investment including desirable corporate formation and immigration options. The following provides a brief summary of your visa options.
B-1 Visitors Visa
The B-1 visa category is for individuals coming to the United States temporarily for business which includes activities necessary for U.S. investment such as commercial transactions, negotiations, and start-up activities. Many investors come to the U.S. during the start-up process of their U.S. business on a B-1 visa and stay in the U.S. to conduct necessary work for their business temporarily. Once the basics of the business are established, investors may consider obtaining a work visa or may send agents to manage the U.S. operation on a work visa, usually E-2 (investor) or L-1 (intracompany transfer).
L-1 Intracompany Transferee
Investors may wish to obtain a work visa instead of a visitor’s visa to oversee U.S. operations. They may also send their foreign national employee to the U.S. to manage U.S. operations or work in a specialized knowledge capacity. The L-1 visa category called intracompany transferee is available if the U.S. entity is a branch, affiliate or subsidiary of an organization abroad and if the transferee has worked for the related organization abroad for at least one year in the past three years in a managerial or specialized knowledge capacity. The process starts with petition filing with USCIS, which is followed by visa application at a U.S. consulate abroad. The L-1 visa is usually valid for an initial period of three years which can be extended for an increment of two years. The L-1A (managerial/executive) can be extended for up to seven years and the L-1B (specialized knowledge) can be extended for up to five years. If the U.S. entity has been doing business for less than a year, the visa will be approved for only one year, which can be extended later.
E-2 Investor Visa
The E visa category is useful for certain traders, investors, and their employees to oversee U.S. operations or work in a U.S. entity. To be eligible, more than 51% of the U.S. entity must be owned and controlled by companies or individuals who have the nationality of a country with which the U.S. has a treaty of commerce and navigation. In addition, to be eligible as employees of the primary investor, such individuals must have the same nationality as the U.S. entity and must be working in an executive capacity or have specialized skills that are essential to the success of the company. Unlike the L-1 visa process which requires pre-approval from USCIS before a transferee can apply for a visa at a U.S. consulate, an E-2 application can be directly submitted to a U.S. consulate abroad. However, to obtain approval of an E-2 application, the employer and employee must show that the U.S. enterprise is a real, operating business that will create employment for U.S. workers or economic activity for contractors. In addition, the investment in the U.S. must be substantial. There is no specific amount of investment necessary for the investment to be viewed as substantial, but the amount must be sufficient to be successful for the enterprise. The E-2 visa is usually valid for five years, during which the visa holder may be admitted to the U.S. for a period of up to two years.
Other nonimmigrant visa categories are available for investors and their employees including H-1B, H-3 and J-1, provided you meet the requirements of these visas.
The EB-5 Investor Category provides a method of obtaining permanent residence for foreign nationals who invest at least $1 million, creating at least 10 jobs. By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000.
Investors may also be able to obtain permanent residence as Intracompany Executives or Managers, or through the PERM labor certification process. See Employment-Based Permanent Residence Sponsorship.
Please contact a member of our SKO Immigration practice for more information about the immigration options for investors including nonimmigrant visa categories as well as permanent resident options.