What are Some Visa and Green Card Options for Entrepreneurs & Investors?

The U.S. is the land of opportunity and the perfect place for entrepreneurs to realize their dream. If you want to start and run a business in the U.S., or if you want to purchase and manage an already existing business in the U.S., there are several visa/green card options available.  This article focuses on the entrepreneur and investor visa categories and the steps required to obtain a visa or green card.

To realize any of these visa opportunities, a trip to the U.S. may be required to research and set up your business.  If you want to come to the U.S. to investigate the U.S. market, explore investment opportunities, set up a business account, rent an office space, meet with an immigration lawyer, hire employees, or meet your employees, a B-1 Business visitor visa may allow you to do this.  Please see more about the B-1 visa when you click here. If you qualify for ESTA, you could also enter as a business visitor on ESTA and stay in the U.S. for up to 90 days.  You can perform the same tasks on ESTA that you could if you entered in B-1 status.

The investor visas are summarized below.

E-2 investor visa

An E-2 visa is a visa classification that is available for foreign nationals who wish to live in the U.S. to develop and direct the operations of a business. The business can be large or small, and an E-2 visa is a great visa option for those who want to start a business. In order to qualify for the E-2 visa, you must meet the following requirements:

1. You must be a national of E-2 treaty country. You can find a list of E-2 treaty countries when you click here.
2. If you are an E-2 investor, you must own at least 50% in the company.
3. You must have invested or be actively in the process of investing in the enterprise
   1. You must show legitimate possession and control of the funds – this means that the investment funds must come from a legitimate source. Please see our blog post on what documents you will need to submit for this requirement when you click here.
   2. The funds must be “at risk” and irrevocable committed – this means that all of the assets must be personal assets subject to risk of loss (you must have something to lose).
   3. You must be close to starting the business – while you cannot accept money from clients or “do business” until the Visa is approved (unless you are outside the U.S. or you have U.S. employees doing the work), you must be close to starting your business. This means you should have a signed lease, your business bank account should be set up, you should have a website, and you should have purchased whatever you need to get the business up and running.
4. You must develop and direct the enterprise – You cannot get the E-2 Visa unless you are the one that is going to direct and run the business. Also, you must have the appropriate skill set such that the government has faith that the business will be viable.
5. Your investment must be substantial. The U.S. Government does not have a predetermined amount that they consider substantial.  This means that there is no minimum or maximum amount that will be considered substantial. In order to assess whether the E-2 applicant has invested enough money, the government uses a proportionality test. You can read more about this test when you click here.  Normally the investment amount is at least close to $100,000 where $40K – $50K has been spent.
6. You must hire U.S. workers (business cannot be marginal). You can demonstrate that a business is not marginal by putting together a business plan that shows growth over a 5-year period or by showing that you plan to hire employees in the future. You can read more about the marginality requirement when you click here
7. You must intend to return to your home country after expiration of the E-2 visa. This is normally satisfied with a letter stating you plan to return to your home country if the visa expires.

E-1 treaty trader visa

The E-1 visa is a nonimmigrant visa for a person or company who is a trader that engages in substantial international trade between the U.S. and their home country. In order to qualify for an E-1 visa, you will have to meet the following requirements:

1. You must be a National of a Treaty Country. You can find a list of E-1 treaty countries when you click here.
2. There must be a trade between the U.S. and the treaty country. There must be:
   • An actual exchange of qualifying commodities (e.g. goods). Please see our blog post on whether service can be considered trade when you click here.
   • The exchange must be traceable and identifiable.
   • The trade must already be in existence at the time you are applying for an E-1 visa (unless you have binding contracts). Please see our blog post on this topic when you click here.
3. The trade must be substantial. Substantial trade means that there must be a “continuous flow” of trade items between the U.S. and the treaty country. This means, that there must be numerous trade exchanges between the U.S. and the treaty country over time. The trade should be over a period of time and for a minimum of 6 months and normally would represent amounts that exceed $250,000. Please see our blog post on this topic when you click here.
4. The trade must be international – this means that at least 50% of your international trade must be with the U.S.  Please note that domestic trade does not count for the purposes of E-1 visa.
5. You are coming to the U.S. to engage in substantial trade.

6. You must intend to return to your home country after expiration of the E-1 visa

O-1A visa and EB-1A green card (Extraordinary Ability)

O-1A visa

The O-1A visa is for an individual who possesses extraordinary ability in the sciences, education, business, or athletics and has been recognized nationally or internationally for those achievements, and this visa category can be used by entrepreneurs. Entrepreneurs that are in the top of their field could qualify for an O-1A visa.

In order to qualify for an O-1A visa, you must have either won a major, internationally-recognized award, such as a Nobel Prize, or be able to provide evidence of at least (3) three of these requirements. Please note that the most relevant requirements to meet for the O-1A visa would be the following:

• Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought.
• Original scientific, scholarly, or business-related contributions of major significance in the field (e.g. patent, new business scheme/process you discovered).
• A high salary or other remuneration for services as evidenced by contracts or other reliable evidence.
• Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought.
• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

Please note that you will need a petitioner to sponsor you for an O-1A visa. Petitioners are usually U.S. employers or U.S. agents. You can set up a legal entity in the U.S. and even if you have a majority interest in this entity, the U.S. entity can petition to sponsor you for an O-1 visa. Self-employment is permitted with this corporate structure in place and you can find out more about that here.

EB-1A green card

The EB-1 Extraordinary Ability green card category is for people who have reached the very top of their field in science, art, business, education or athletics and can demonstrate this ability through proof of sustained national or international acclaim. If you are an entrepreneur that has risen to the very top of the field, you may qualify for the EB-1A green card.

There are two requirements for this green card. First, you must demonstrate that you have extraordinary ability in the field of business. Second, you must prove that you are coming to the United States to continue working in that field.

In order to qualify for an EB-1A green card, you must have either received a major, internationally recognized award, or meet 3 of the following requirements. Please note that the following requirements would be the most relevant for the EB-1A green card for an entrepreneur:

• • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field – this could be for example patents, or business strategies or protocols you came up with.
  • Evidence of your performance of a leading or critical role in distinguished organizations.
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field.
  • Evidence that you have been asked to judge the work of others, either individually or on a panel.

One advantage of the EB-1A green card is, that you can self-petition, meaning, that you do not need to find a U.S. employer that will sponsor you for this green card and many entrepreneurs like the EB-1A option for this reason.

EB-2 NATIONAL INTEREST WAIVER

The national interest waiver (NIW) is another great green card option for an entrepreneur.

In order to qualify for the National Interest Waiver, you must:

1. Have an advanced degree (e.g. Masters) or equivalent (e.g. Bachelor’s + 5 years of post-baccalaureate progressive work experience in the field), or
2. You must be able to show exceptional ability (meaning a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business). In order to demonstrate that you have exceptional ability, you must meet 3 of the criteria below:
   • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
   • Letters documenting at least 10 years of full-time experience in your occupation
   • A license to practice your profession or certification for your profession or occupation
   • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
   • Membership in a professional association(s)
   • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
   • Other comparable evidence of eligibility is also acceptable.

A new standard for adjudicating EB-2 National interest Waiver petitions was created in 2017 under the Dhanasar case, which made this category much more friendly for entrepreneurs. Under the new Dhanasar standard, you must demonstrate the following:

1. Your proposed endeavor has both substantial merit & national importance. This can be demonstrated by the following:
   • Employment of U.S. workers
   • Economic impact/benefit to community (this can be based on impact to one location/area)

Expert letters are extremely important to help define the endeavor and why it has substantial merit and national importance. Additionally, market research, current media articles, publications, statistics on unemployment in a particular area could also help to satisfy this requirement.

2. You have to prove that you are well positioned to advance the proposed endeavor. This requirement focuses on the applicant. USCIS will look at your education, skills, knowledge, and record of success in related/similar efforts. Additionally, you should submit a model or plan for future activities in the U.S. (e.g. a business plan) or any proof of interest from potential customers, users, investors, relevant organizations or individuals.
3. On balance it is beneficial to US to waive job the offer & labor certification (PERM ) process.

One big advantage of the EB-2 National Interest Waiver is, that you do not need a U.S. employer to sponsor you for this green card, and you can self-petition. Additionally, normally in the EB-2 category an employer must go through a PERM labor certification process where they undertake a recruiting exercise to show that qualified U.S. workers are not available for the position. This PERM process is time consuming and expensive. For NIW petitions, an applicant can self-petition and the labor certification requirement is waived.

Another big advantage of the EB-2 National Interest Waiver is, that both start-ups and established business owners can qualify for the National Interest Waiver. Please see our blog post on this topic when you click here

EB-5 DIRECT INVESTMENT GREEN CARD

The EB-5 Investment Immigration program allows a petitioner who has invested $900,000 into a Targeted Employment Area (TEA) or $1,800,000 into a non-TEA area to obtain a green card, if they invest in a business that creates 10 full-time jobs.  If the applicant meets the requirements, he/she will first obtain a conditional green card, and eventually a permanent green card.  You can find out more about EB-5 visas here.

An EB-5 green card is a great option for you if you have a sufficient capital to invest in the U.S. and here are the requirements you will need to meet for the EB-5 direct investment green card:

1. You must invest or be actively in the process of investing either $1,800,000 or $900,000 (the lower, $900,000 investment is permitted in rural or high unemployment settings, which are also known as “targeted employment areas,” or “TEA”);

Under regulations effective Nov. 21, 2019, USCIS will determine whether an area is a TEA. An area can qualify as a TEA if (i) it has unemployment more than 150% the national average calculated by the Bureau of Labor Statistics, or (ii) if it is a rural area. Rural area is defined as an area that is outside a metropolitan statistical area (MSA) and outside of a city or town having a population of 20,000 or more based on the most recent national census.

Please see our blog post on this topic when you click here.

2. You must show that the investment funds come from a legitimate source

You will have to demonstrate that the capital that is being invested in the business was obtained through lawful means. This is an extensive requirement that is much more than what is required for an E-2 visa.

Please see our recent blog post on using proceeds from unsecured loans for the EB-5 investment when you click here.

3. The entire amount of the investment must be active or at risk (this means that you cannot just be thinking about buying a business, and you have to put up capital that could be lost)

You as the EB-5 investor will have to use your own capital to invest the money and the investment cannot be structured as a loan.  Investment can be cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness to the NCE, if secured by assets owned by the entrepreneur.

Please note that it is not sufficient to put the investment money onto your bank account. There must be a risk of loss and a chance for gain.  As such, you should show contracts and commitments to show that the money is committed and will be used.  Issues can also come up if the owner takes money or distributions from the account.

4. You must make the investment in a “new” or “existing business enterprise”

This is an investment made after Nov 1990.

5. You must demonstrate that the investment directly or indirectly results in the creation or preservation of ten full time jobs.

1. 1. 1. Your EB-5 investment must create at least 10 direct and full time (at least 35 hours per week) jobs for qualifying U.S. workers. Please note that your family members do not count as employees for the purposes of EB-5 green card. Additionally, independent contractors do not count. You should have W-2 employees.
      2. For the Direct EB-5 investment, the jobs must be direct full-time jobs. As such, indirect jobs cannot be included. Additionally, the jobs that are created must normally be “new” jobs. This means that if you buy a business that already has 10 employees, you would have to invest funds and create 10 additional jobs. There are exceptions to this rule though when a company is doing very poorly or has been restructured.
      3. Please note that for the EB-5 Direct investment, there must be a nexus between the EB-5 investment and job creation.  Please see our blog post on this topic when you click here.

Please see our recent blog post about the EB-5 direct investment when you click here

Please see additional information on the EB-5 green card when you click here.

Other Investor Visa Options

Other potential visa options for entrepreneurs are listed below:

• You could apply for an H-1B even if you are self-employed or have an ownership interest in the U.S. business, but these cases are subject to additional scrutiny and you will need to submit additional evidence. See our blog post on this when you click here.
• You could apply for a Diversity Visa lottery green card.
• Certain U.S. citizen/green card holder family members could sponsor you for a green card. See our blog posts on this when you click here and here.
• You could find a U.S. employer who could sponsor you for an EB-2 or EB-3 green card through the PERM process. Please see our blog post on this when you click here.
• If you are an entrepreneur who has been running a company abroad, you could apply for an L-1A nonimmigrant visa or EB-1C multinational manager or executive green card.

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