Helping startup founders, c-level executives, and professionals meet their entrepreneur visa needs
The benefits entrepreneurs contribute to the U.S. economy are undeniable, including technological innovation and job creation. In a recent Forbes magazine article, Forbes reported that more than three million foreign-born entrepreneurs operate businesses in the United States, employing millions of workers. Furthermore, foreign entrepreneurs hold a significant number of patents for new technologies. Furthermore, immigrant entrepreneurs started prominent companies such as Google, Tesla, and Yahoo.
While the U.S. is home to many businesses founded by foreign entrepreneurs, there is no specific class of immigration entrepreneur visas under the U.S. immigration laws that allow foreign entrepreneurs, business owners, and startup founders to establish and grow a business in the U.S.
Therefore, an experienced immigration lawyer must navigate the complex requirements of various visa categories to determine how their foreign entrepreneur client may fit within a specific visa category, allowing them to operate a business in the United States.
This Entrepreneur Visa Guide will discuss various nonimmigrant and immigrant visa options available to entrepreneurs and startup founders.
There are multiple temporary and permanent U.S. visa options available to promising international entrepreneurs. Each visa has different criteria and requirements, and it is important to determine which option is appropriate for you. Contact our entrepreneur visa lawyer to evaluate which entrepreneur visa might be right for you and learn how to apply for a relevant entrepreneur visa.
The best entrepreneur visa might be an E visa. The E, treaty trader and treaty investor, nonimmigrant visas are available to entrepreneurs who are citizens of countries with which the United States maintains a treaty. Entrepreneurs can apply for an E visa to travel to the United States to cultivate and expand trade between the U.S. and their country of nationality (E-1 visa) or establish and invest in a U.S. business (E- 2 visa).
A clear advantage of an E visa for entrepreneurs is that it can be renewed for an indefinite period and does not have numerical limitations, therefore, allowing entrepreneurs to operate their U.S. businesses without considerable restrictions.
The initial requirements for both E-1 and E-2 visa are:
An entrepreneur applying for an E-1 Treaty Trader visa must be coming to the United States to engage in substantial trade (services and technology) in qualifying activities, principally between the United States and their treaty country.
The trade volume and monetary value of transactions prove whether the trade is “substantial.”
For trade to be principally between the United States and the treaty country, the trade should be over 50% of the total volume of international trade.
Trade must constitute an exchange, which is an actual exchange of qualifying things and must be traceable and identifiable. In addition, trade must be international in scope, involve qualifying activities, and already be in progress.
An E-2 Treaty Investor visa is for foreign national entrepreneurs coming to the United States to develop and direct the operations of the U.S. enterprise in which the entrepreneur has invested in or is in the process of investing a substantial amount of capital.
The funds invested into the U.S. business must be in the possession and control of the E-2 entrepreneur applicant, at risk, and the commitment of the investment funds must be real and irrevocable. The source of E-2 investment funds can be derived from the entrepreneur’s savings, gifts, inheritance, winnings, loans collateralized by the entrepreneur’s own assets, and other legitimate sources.
The U.S. business must be real and operating at the time of the E-2 application submission. An existing business must be providing a service or a commodity, while a new business must show it will provide a service or commodity. The E-2 business cannot be speculative, and it should be operated for profit. The business should not be marginal. It must have the present or future capacity to generate income that will provide more than just an income for the entrepreneur investor and their family.
The L-1 intracompany transferee visa is a good and efficient option for multinational companies seeking to establish or expand their presence in the United States.
Many people mistakenly believe that an L visa is meant for multi-million-dollar multinational corporations. The L-1 visa might be one of the best visas for entrepreneurs because the L-1 visa category could be an excellent option for small and medium-sized companies whose owners, executives, and managers want to come to the U.S. to start a business.
The L-1 visa category has no minimum investment or capital requirements. Furthermore, it does not require hiring a certain number of U.S. employees. In fact, USCIS will grant one year to foreign nationals to open an office in the U.S. and start operations of a U.S. business.
By the end of that initial one-year period, the foreign national must show that the U.S. business is functioning and moving forward with its business strategy. Furthermore, the employment of U.S. employees is a plus. Also, an L-1 executive or manager has to show that he/she is actually working in an executive or managerial capacity. That may include managing direct employees, independent contractors, or individuals working at other companies holding executive, managerial or professional positions. A well-prepared L1 petition is a necessity.
The primary L1 visa requirements are as follows: An L-1 visa is available to an executive or manager or someone with specialized knowledge who is being transferred from a foreign entity to a U.S. branch, affiliate, or subsidiary. In addition, the L1 applicant must have been working for a qualifying organization abroad for one full year within the 3 years immediately before their L1 application.
The U.S. entity/petitioner must be part of a qualifying organization transferring an employee from their entity abroad to a U.S. entity. The qualifying organization must be the U.S. or foreign firm, corporation, or other legal entity. The organization must be doing business as an employer in the U.S. and in at least one other country through a relationship described in the regulations, such as parent, branch, subsidiary, or affiliate.
The overseas entity must be actively doing business. In addition, the U.S. company must serve as the employer to the L-1A applicant, including control and authority over the employee.
If establishing a new office in the U.S., an L-1 visa is initially valid for one year. Other L-1 visa holders may stay initially for up to three years and can receive extensions.
L-2 spouses qualify for independent work authorization. This employment authorization sets up an exciting option to pursue an entrepreneurial venture.
O-1A is another nonimmigrant work visa available to entrepreneurs with extraordinary ability in the business, sciences, education, or athletics.
To be eligible, the entrepreneur must show that they have sustained national or international acclaim in their industry. Also, the entrepreneur must prove that they are one of a small percentage who have risen to the very top of their field of expertise.
To establish extraordinary ability, the entrepreneur must show a major internationally recognized award (such as the Nobel Prize) or meet at least 3 of the following eight criteria:
Tip: The entrepreneur can also provide testimonial letters from others in the field to prove their success and important contributions to their field.
While establishing extraordinary ability can be challenging for some, startup entrepreneurs might become eligible over the next few years. For example, starting a business based on new and distinctive technology and demonstrating the startup’s ability to create jobs in the U.S. may help meet two criteria for O1 entrepreneurs. Furthermore, the entrepreneur can act as an expert mentor, write articles that are published, present at conferences, and judge the work of others. All these actions encompass the criteria needed to qualify for the extraordinary ability test for an O-1 visa.
There are many benefits to the O1 visa, which makes it one of the best visas for entrepreneurs.
Unlike the H-1B category, the O-1 visa doesn’t have annual numerical restrictions and doesn’t require a minimum degree. Furthermore, an O1 visa doesn’t have salary requirements, which can be a great advantage for startups that do not yet have a revenue stream. O-1 visa also does not require specific citizenship, unlike the E-2 visa, and is not restricted to Canadians or Mexicans, such as the TN. Furthermore, an O-1 visa does not require prior employment, such as L-1 visas.
Furthermore, the O-1A category does not require the entrepreneur to show a substantial investment into a U.S. startup or require ownership interest in the company. This visa strategy works well for foreign nationals who may not have majority ownership in the U.S. startup or do not plan to provide substantial investment in the business.
On the other hand, O1 visa category does allow O1 entrepreneurs to be the majority shareholder. Please note that the O-1 regulations do not allow for self-employment / self-petitioning. If the foreign entrepreneur owns more than 50% of the company, he or she will need to show a valid employer-employee relationship through the independent board of directors or some other version of the employer/employee relationship.
O-1 visas are granted for an initial period of up to 3 years. However, there is no limit on extensions. O1 extension with the same employer and for the same position will be granted in increments of one year at a time. However, O-1 extensions for a new employer or a new event/position/etc. can be granted for a period of 3 years again.
O-1 visa also allows dual intent. Therefore, an entrepreneur does not have to keep a foreign residency. Furthermore, filing for permanent residency (“green card”) does not disqualify them from receiving an O visa.
Another attractive benefit of an O-1 visa, an individual who has qualified for an O-1 visa may qualify for permanent resident status based on extraordinary ability (EB-1A) or national interest waiver (EB-2 NIW).
The TN visa is for Canadian and Mexican citizens entering the U.S. to work in one of the professional occupations listed in the NAFTA (North American Free Trade Agreement).
Canadian and Mexican professionals in various fields, including accounting, law, information technology, engineering, finance, marketing, graphic design, etc., frequently use TN to work in the United States.
The TN visa can be quick and easy to obtain. Canadian entrepreneurs can present at the US border with a brief letter and supporting evidence outlining the company, the position, and the entrepreneur’s qualifications.
Mexican entrepreneurs will follow the same application process and present the same information. However, they will need to schedule an appointment at a US consulate instead of presenting at the border.
The benefit of a TN visa is that there is no annual limit on the number of TN visas. In addition, the entrepreneur can get up to a three-year work permit that can be renewed indefinitely.
TNs can be straightforward and cheap if you have a job offer from a US company and a bachelor’s degree in one of the fields listed in the NAFTA regulations at 8 CFR § 214.6.
It gets trickier if you are or will be an owner of a startup.
NAFTA specifically prohibits “self-employment” for TNs. That poses problems for entrepreneurs or recent US university graduates who want to start a business in the United States.
The NAFTA regulations do not define “self-employment.” However, an “employer” under NAFTA can either be a US company or a Canadian or Mexican company with a written agreement to provide professional services to a US entity.
So, how does this scenario work out for startup founders? For example, the entrepreneur forms a Canadian corporation. Furthermore, the entrepreneur co-founds a US company. Then, the entrepreneur’s Canadian company enters into a professional service agreement (such as software consulting services) with their US startup. In this case, the TN application would consist of the contract for the services, the job offer on the Canadian company’s letterhead, information about the Canadian company, and the applicant’s educational and work experience proof.
If the ownership of a Canadian entity is not feasible, the prohibition against self-employment for TN entrepreneurs may also be resolved through:
Please note that USCIS has generally accepted these strategies in the context of the H1B and O1 entrepreneurs. An argument could be made that entrepreneurs with similar employer-employee arrangements should qualify for TN status.
Some NAFTA occupations require a minimum of a bachelor’s degree to qualify for TN. Other TN positions require a specific degree or post-secondary diploma plus experience (such as a computer systems analyst). Nonetheless, NAFTA regulations provide some opportunities for both degreed and non-degreed applicants to obtain a TN visa.
NAFTA allows an applicant possessing a degree in a similar field to qualify for TN status under certain circumstances. For example, a Mexican professional may seek to fill a graphic designer position for a US company. However, the applicant’s degree is in visual arts and not graphic design. NAFTA occupations do not list the visual arts degree for a graphic designer. However, an evaluation of the person’s degree transcript may establish that the applicant took classes where the knowledge gained could be used to perform graphic design work. Thus, a TN application could be made.
An H-1B visa for entrepreneurs has its pluses and minuses. For those who qualify, it could be a straightforward and cheapest entrepreneur visa option.
Furthermore, an H-1B visa allows for “dual intent,” which eases travel restrictions for those applying for immigrant visas (“green cards”). An entrepreneur also has the flexibility of holding concurrent H-1Bs.
Importantly, spouses and other dependent family members do not receive work authorization in H-4 status, but they may study.
An H- 1B visa is initially valid for up to three years and can be extended for up to six years.
Here are the reasons why planning ahead is vital for entrepreneurs considering H-1B visa, which is why we placed the H-1B visa towards the bottom of our preferred visas for entrepreneurs.
International Entrepreneur Parole (IEP) was first launched in 2012, but has rarely been used by entrepreneurs before May 2021. The IEP requirements are outlined at 8 CFR §212.19.
Parole can be granted for up to 30 months with the possibility of a thirty-month extension. Employment is incident to the entrepreneur’s IEP status.
Importantly, International Entrepreneur Parole is only a temporary period of parole into the United States – it does not lead to permanent residence, nor is it nonimmigrant status or a visa. Generally, IEP would only be a last-option alternative to an entrepreneur who does not otherwise meet the requirements for an H, E, L, TN, or O visa, or who would not qualify for an EB-1A, EB-2 NIW, or work authorization through their spouse’s status.
Generally, the International Entrepreneur Parole requirements are:
What is Substantial Growth? USCIS will consider the following factors:
NOTE: The investment amount is automatically adjusted by the Consumer Price Index for All Urban Consumers (CPI-U) every three years. The amounts increased as of October 1, 2021. Check the USCIS website for the correct investment amounts.
Entrepreneurs may qualify for U.S. permanent residence through the first preference category as an “alien of extraordinary ability,” referred to as EB-1A.
The EB-1A petition is optimal for an entrepreneur as it can be self-sponsored and does not require the sponsorship of a petitioning employer. Furthermore, EB-1A does not require an underlying labor certification application (PERM). Thus, the entrepreneur’s ownership of his or her own business does not present the same immigration challenges that exist in categories such as EB-2 or EB-3, where a controlling interest in the startup would be problematic. Moreover, the EB-1A category normally remains “current” and not-backlogged for visa availability purposes, with only minimal visa backlogs occurring in recent history.
Even though the EB-1A category is flexible and faster than other immigrant categories, the burden placed on the applicant is very high – has the entrepreneur applicant reached the very top of their field of expertise?
The entrepreneur must have (1) extraordinary ability in the business, sciences, education, athletics, or arts; (2) which has been demonstrated by “sustained national or international acclaim”; and (3) whose achievements have been recognized in the field through extensive documentation. The entrepreneur also must continue to work in their field of expertise in the US.S., and their entry must substantially benefit the United States in the future.
TIP: Sometimes it is helpful to narrow the field of expertise down as much as possible to be able to show the entrepreneur has reached the top of their field. For example, if an entrepreneur tried to establish that they were at the very top in the “business” field, it would be rather hard as the field is so broad and encompasses 100s of areas and 1000s of people. Therefore, narrowing down the entrepreneur’s field of expertise to, for example, “business with an emphasis on software development” can make it easier to establish an entrepreneur’s top standing in their specific field and compare them to a more narrow field of individuals in their industry.
As with the O-1 visa, the EB-1A entrepreneur can show evidence of a one-time major achievement or award, or the entrepreneur can meet 3 of the 10 enumerated criteria.
Most applicants won’t have the luxury of presenting a one-time achievement award of major significance like a Nobel Prize. Therefore, we will focus on other eligibility criteria:
Tip: It is acceptable to use the same sorts of evidence in multiple criteria if they fit. Also, it might be a good strategy for an entrepreneur to hire a PR firm to help market themselves and/or their companies. Getting significant interviews or articles in magazines like Forbes, Entrepreneur, Bloomberg Business Week, Fortune, Wired, etc., could strengthen an EB-1A case.
USCIS will review each of the criteria to determine if the entrepreneur meets at least three of the above criteria but then will conduct a “final merits determination” to decide whether the entrepreneur reaches the standard of “sustained national or international acclaim” under the totality of the circumstances. The entrepreneur must show that, taken together, all of the evidence demonstrates that the entrepreneur has sustained national or international acclaim.
Tip: Focus on the importance of the entrepreneur’s work and successes, financial success from startup endeavors, board memberships and/or incubator involvement, press and media (not just individually but also about their startups), presence at international events, trade shows, and conferences, important podcasts, and media, etc.
Entrepreneurs also may qualify for a second preference immigrant petition called the “National Interest Waiver” (EB-2 NIW). This is a second preference category petition, which allows self-sponsorship.
First, the entrepreneur must qualify for the EB-2 category, and then the entrepreneur must qualify for the National Interest Waiver.
To qualify for an EB-2 category, the entrepreneur must have either (1) an advanced degree, and the position is typically filled by someone with an advanced degree, or (2) have exceptional ability in the sciences, arts, or business.
The NIW petition also requires a showing that:
USCIS recently updated its Policy Manual reflecting the standards for entrepreneurs to meet the NIW requirements. USCIS recognized that there might be unique evidence submitted by entrepreneurs who oftentimes have ownership over their businesses, who maintain an “active and central role” over their enterprises, and who possess “knowledge, skills or experience” that would “significantly advance the proposed endeavor.
Specifically, USCIS outlined special criteria that entrepreneurs can use to qualify for the three-pronged NIW test outlined above:
In its Policy Manual update, USCIS also recognized that entrepreneurs might operate in various high-tech or cutting-edge industries which have their own industry or technology experts that provide various forms of peer review.
Our entrepreneur visa attorney is here to help you navigate the complexities of securing the right visa for your startup or business venture. We will assess your eligibility, guide you through the process, and ensure all required documents and applications are properly prepared and submitted.
We are committed to assisting entrepreneurs, startup founders, and business owners from all 50 states and worldwide. The visa process can be challenging, but with our expertise, you can move forward with confidence.
Don’t let the complexities of immigration law slow you down. Contact us today to schedule a consultation and take the next step toward securing your entrepreneur visa!
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