Visa Lawyer Blog

Articles Posted in Entrepreneur Immigration

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Last week we introduced the unveiling of an exciting new rule called the ‘International Entrepreneur Rule’ which will allow certain entrepreneurs the opportunity to seek ‘parole’ into the United States, based on his or her role in the startup company, provided the company can demonstrate substantial potential for rapid growth and job creation in the United States.

Eligible entrepreneurs will need to be prepared to demonstrate that their entry would create a significant public benefit in the United States, and provide ‘substantial’ and ‘demonstrated potential’ to create more jobs and business growth in the United States, and not merely provide income to the entrepreneur and his or her family members. In this post we will review the requirements, clarify definitions, and describe what evidence can be provided in support of an entrepreneur application.

If this new initiative becomes a final rule, it is estimated that up to 2,940 entrepreneurs would be eligible to apply for this new program on an annual basis. Recently, the Notice of Proposed Rule-making (NPRM) in the Federal Register has provided more guidance on exactly which entrepreneurs and start up enterprises may apply. In addition, more information has been provided regarding which investments will qualify.

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Today August 26, 2016 we bring entrepreneurs around the world exciting news regarding a new measure USCIS plans to implement designed to benefit entrepreneurs of startup companies. USCIS has announced a new proposal that will make it easier for certain foreign entrepreneurs to receive temporary permission to enter the United States, also known as ‘parole,’ for the purpose of starting or scaling their start-up business enterprise in the United States.

The rule has been referred to as the ‘International Entrepreneur Rule’ which will give the Department of Homeland Security (DHS) the authority to expand discretionary statutory parole status to eligible entrepreneurs of startup companies, who can demonstrate that the startup enterprise they are interested in creating, has a substantial potential to yield rapid growth, and job creation in the United States.

Under this new rule, DHS would be able to grant parole on a case-by-case basis to eligible entrepreneurs of startup companies who can demonstrate the following:

  • At least a 15 percent ownership interest in the startup enterprise in question;
  • That they take on an active and central role in the startup enterprise’s operations;
  • That the startup enterprise has been formed in the United States within the past three years; and
  • That the startup enterprise has proven to yield a substantial and demonstrated potential for rapid business growth and job creation as evidenced by:
  1. Having received a significant investment of capital of at least $345,000 from certain qualified U.S. investors that have a proven track record of success i.e. showing established records of successful investments;
  2. Having received significant awards or grants of at least $100,000 from federal, state, or local government entities; or
  3. By partially satisfying one or both of the above criteria, in addition to presenting other reliable and compelling evidence to show the startup entity’s substantial potential for rapid growth and job creation in the United States;

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One of the biggest critiques of the U.S. immigration system is that there are very few options available to foreign nationals that create a direct path to permanent residency. Indeed, this is a very cruel reality for our clients. A reality that we struggle to overcome on a day to day basis. More often than not we speak to clients who simply cannot immigrate to the United States because of our antiquated immigration laws.

The immigration system boils down to two harsh realities. Generally, you may apply for permanent residence only if: 1) you have a qualifying family relationship to a legal permanent resident (LPR) or U.S. Citizen (family sponsorship) 2) you have secured employment with a U.S. company willing to sponsor your permanent residence (employment sponsorship) or 3) you belong to a special category of green card applicants and may immigrate on the basis of that category (VAWA recipients, asylees, diversity visa lottery winners etc.)

In order for you to understand the green card options available to you under the current immigration laws of the United States, we outline 9 of the most common ways to obtain permanent residence below:

Green card based on a qualifying Family-sponsorship

You are generally eligible to apply for permanent residence if you have a qualifying family relationship with a U.S. Citizen or Legal Permanent Resident:

  1. If you are the immediate relative of a U.S. Citizen your relative can file Form I-130 Petition for Alien Relative on your behalf, which will allow you to file the I-485 application for Permanent Residence. Immediate relatives of U.S. Citizens include spouses, unmarried children under the age of 21 of a U.S. Citizen, and parents of U.S. Citizens 21 years of age or older.

Immediate relatives of U.S. Citizens DO NOT have to wait in line for a visa number to become available to them in order to immigrate to the United States.

  1. If you are the family member of a U.S. Citizen and you fall under a qualifying “preference category,” your U.S. Citizen relative may file the I-130 Petition on your behalf. Family members of U.S. Citizens that fall into a “preference category” include: unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. Citizen petitioners 21 years of age or older.

Immigrant visa numbers for these individuals are limited and are therefore subject to a waiting period. You must wait for your priority date to become current on the Visa Bulletin, based on your preference category and country of charge ability, before you are eligible to either apply for adjustment of status in the United states, or apply for an immigrant visa at a U.S. Consular post abroad (if you reside overseas).

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If you are a foreign entrepreneur, you have probably discovered that the United States immigration system is very limited in that there are very few visa options available to entrepreneurs that do not tie down the entrepreneur to a foreign employer, as is the case for the L and H visas. To make matters worse, if your ultimate goal is to obtain a green card to live and work in the United States permanently, you must work for an American employer willing to sponsor your adjustment of status. Although there are few exceptions, the main avenue through which entrepreneurs can gain permanent residence is either through family-sponsorship or employment-based sponsorship.

To obtain permanent residence through an employer you must either a) be a professional employed by a U.S. employer willing to sponsor your green card b) demonstrate extraordinary ability in your industry (science, arts, education, business, or athletics, c) work in a management or executive position abroad requiring international transfer to the United States or d) qualify as an EB-5 investor. In either of these cases, the U.S. employer must submit the I-140 Immigrant Petition for Alien Worker for you, before you can apply for permanent residence. If your ultimate goal is not to obtain a green card, then you have more options available to you.

We decided to write about this topic because we have found that many entrepreneurs that visit our office are not well-informed on other visa types that put them on a more direct path to permanent residence. Often times the topic of conversation leads to the E-2 Treaty trader visa, by far the most discussed visa type among entrepreneurs. Few entrepreneurs however have heard about the L-1 visa classification, that may in some ways be more beneficial to foreign entrepreneurs wishing to live and work in the United States permanently. Below we discuss both visa types and the advantages and disadvantages of both visas.

The E-2 visa, the most talked about visa:

Without a doubt, the most popular visa option entrepreneurs ask about is the E-2 visa. Many entrepreneurs however do not know that the E-2 visa is not available to everyone, and it is not a path to permanent residence. The E-2 visa is a non-immigrant treaty investor visa that is only available to foreign nationals from specific treaty countries. The E-2 visa allows foreign nationals to carry out investment and trade activities, after making a substantial investment in a U.S. business that the foreign national will control and direct. E-2 visa investors can either purchase an existing U.S. business or start a new business.

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