Curran & Berger LLP

If you are are the beneficiary of a recently approved H-1B petition, there are several important things you should know regarding visa issuance, validity, international travel, and more. Please review this material carefully.

An H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree or equivalent as a minimum requirement.  Typical examples of H-1B eligible professionals are computer programmers, engineers, teachers, scientists, and lawyers. The H-1B visa is valid for three years and can be renewed for an additional three years.

The J-1 Exchange Visitor Visa program allows foreign nationals to come to the U.S. for a temporary period for a wide variety of educational and cultural exchange programs.  Exchange programs sponsor students, job trainees, faculty, professors and research scholars, specialists, government visitors and several other types of visitor.  Detailed information about J-1 visas can be found on the U.S. Department of State website.

Foreign medical graduates (FMG) who study or complete residencies in the U.S. in J-1 visa status are subject to the 212(e) two-year home residence requirement, which requires that they must spend at least two years in their home country before they are allowed to change their status to H-1B or be granted permanent resident status in the U.S.  If you are a FMG who has an offer of full time employment at a health care facility and are working in an area experiencing a designated shortage of health care professionals, you may be eligible to apply to the U.S. State Department for a waiver of the two-year home residence requirement. 

An L-1 visa is a temporary visa that allows foreign companies to transfer executives and managers (L-1A) and other workers possessing specialized knowledge (L-1B) temporarily to affiliates or subsidiaries in the United States.  This visa category is intended to improve management effectiveness, expand U.S. exports, and enhance competitiveness in markets abroad.

The O-1 visa is a temporary employment visa available for aliens of extraordinary ability in the arts, sciences, athletics, education or business. In practice, this includes nearly any field of endeavor: puppeteers, figure skaters, scientific researchers, and more. The O visa can be a welcome option for highly talented individuals who are not eligible for another type of visa. O visas are granted for the duration of an "event" (i.e. a grant, project, tour, etc.) and for an initial period of no longer than three years. Extensions for the O visa are easy and unlimited, granted in increments of 1 year at a time.

A TN Visa is available to citizens of Canada and Mexico who have an offer of temporary employment in the U.S. for a position that is on the list that was negotiated as part of the North American Free Trade Agreement (NAFTA) .  Detailed information about the TN Visa can be found on the U.S. Department of State website.

Visa Information for Entrepreneurs

Before you begin

As an entrepreneur, there may be several options to stay legally in the United States. The first thing to do is brainstorm a list of all possible visa types. Then, we can help you understand the options and the advantages/disadvantages of each.

Please see this article on our website: "Employment-based Visas: There may be a better Way."  

If you would like to discuss your options with our staff, or to start a case, please complete our contact page and/or call our office at 413-584-3232.

Frequently Asked Questions

• Can I start a U.S. business?
• Can I stay in the U.S. for my business?
• Can I pay myself?
• What are the most common visa types for entrepreneurs?
• Basic requirements for an E-2 visa
• Basic requirements for an E-1 visa
• Other Temporary Visas
  

• New Developments & Further Reading

Can I start a U.S. business?

Yes, visa status is not required to be a passive owner, as in buying stock or owning real estate.

Can I stay in the U.S. for my business?

In order to stay in the U.S. to run a business, you will need legal status. If you are a student in F-1 status you must have work authorization to be employed at the business. OPT is the most flexibile time of F-1 status. After your OPT ends, you will need to find another status to remain the U.S. for the business.

More information on STEM OPT extensions is available on the NAFSA website.

Can I pay myself?

You can only pay yourself if you are authorized for employment by USCIS. In most situations, it makes sense to keep up a series of temporary visas until an opportunity for permanent residence arises.

Our website offers an overview of unauthorized employment here.

What are the most common visa types for entrepreneurs?

E-1 Treaty Trader and E-2 Treaty Investor Visas.

The E-1 Treaty Trader and E-2 Treaty Investor visas exist for citizens of countries that maintain treaties of commerce and navigation with the United States. In order to qualify for an E visa the applicant must be coming to the U.S. to conduct trade between the U.S. and the treaty country, or to oversee the operations of an enterprise in which they have invested.

The applicant's spouse and children under age 21 may apply for derivative E visas. The spouse is eligible for work authorization, children are not. The duration of E visas is governed by the treaty, and by diplomatic reciprocity tables.

Curran & Berger LLP works directly with Matthew Roy, a former U.S. Consular Officer and the founder of the New Atlantic Management Group to for business plan development. Please see his article on E-visas and or the New Atlantic Management Group website for more information.

Basic Requirements for an E-2 visa

• Nationality
• Investment must be substantial
• Real, operating enterprise
• Investor must have control of the funds, and investment must be “at-risk”
• Investor must have controlling interest,  and intend to develop and direct the enterprise
• Enterprise must be more than marginal

At the same time, some of the requirements can be very restrictive. There is no flexibility on the nationality of the business, investors, and employees and no flexibility on the ownership percentage or role of the investor applicant in the business.

Building a Strong E-2 Case
If you have an idea and the entrepreneurial drive to execute, along with access to a modest amount of capital (and are a nationality of an E-2 treaty company) you can potentially build an E-2 case.

Strong E-2 cases tell a compelling story – it is as much a sales pitch as it is a legal case. The business plan must convey the entrepreneurial spirit of the investor and the positive local, regional, or national economic impact. Presentation is important. The business plan and analytical cover letter must be concise and organized.

Basic Requirements for an E-1 visa

The E-1 Treaty Investor visa is used much less often than the E-2. The E-1 exists for a company that has substantial trade with the owner's home country. This trade can be goods, technology,or services.

• Nationality - you must be a citizen of a treaty country.
• The trading firm you work for must have the nationality of the treaty country (must own at least 50%)
• Trade must be substantial
• More than 50% of the international trade must be between the U.S. and the treaty country
• You must be an essential employee, employed in a supervisory or executive capacity, and must possess specialized skills essential to the firm. 

Other temporary visas

• H-1B – salaried position related to degree, heavily regulated. An explanation of “specialty occupation” for H-1B visas can be found here.
• L-1 - transfer from employment by affiliated company abroad.
  
• O-1 – based on “extraordinary ability” in business or the subject of the business
• Free Trade Agreement – Canada, Mexico, Chile, Singapore, Australia – more to come.

There may also be green card options available to you: http://curranberger.com/content/view/61/106/

New Developments & Further Reading

• In early 2012, the Department of Homeland Security (DHS) issued a press release addressing their intention to promote business development with visas.

• USCIS has also created a new web portal for entrepreneurs.

• In late 2012, the Wall Street Journal printed an article about start-up visas for entrepreneurs (may require log-in).

In accordance with section 212(a)(7)(B) of the Immigration and Nationality Act, an alien who applies for admission into the United States on a nonimmigrant visa (NIV) is required to possess a passport that:

1. Is valid for a minimum of six months beyond the date of the expiration of the initial period of admission into the United States, and
2. Authorizes the alien to return to their home country, or to proceed to and enter some other country at the end of the initial period of admission.