Immigration Options for Entrepreneurs

Immigration Options for Entrepreneurs

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  May 2016 IMMIGRATION OPTIONSFOR ENTREPRENEURS STARTING A COMPANY No Attorney-Client Relationship. Not Legal Advice.
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  Dimo Michailov |Attorney [email protected] @cilawgroup Aleksandra Michailov| Attorney [email protected] @aleksmichailov
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  THE BAD NEWS…
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  AND THE GOODNEWS… “America remains a beacon of entrepreneurialism” … and there are still a number of good options for startups and entrepreneurs…
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  TOPICS COVERED TODAY Pickingthe Right Visa How to pick the best visa type? Common Visa Types Eligibility and requirements. Corporate Structures Overview of common types. Requirements to Work Rules about “working” Questions and Answers …and discussion.
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  REQUIREMENTS TO WORKIN THE U.S. Work Authorization Required Visa Needed to Start Co.? Taking Profits or Being on Company Payroll` Working as Volunteer
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  COMMON CORPORATE STRUCTURES 01 02 03 Flexibleand popular to foreign-based companies and investors But: tax/payroll implications for owner-workers and possible issues for H-1B visa sponsorship. Limited Liability Company (LLC) Available to foreign investors and owners. Popular for owner H-1Bs. C Corporation With minor exceptions, limited to U.S. individual shareholders and NOT available to foreign nationals. S Corporation Rules Vary by State Can incorporate in one state, but register and do business in another. CPA/Corporate Help Plan for tax, structure and immigration issues together.
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  COMMON VISA TYPES H-1BE-2 O-1 B-1L-1
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  H-1B FOR ENTREPRENEURS– MAIN ISSUES 01 02 03 04 05 Right to Control Ownership, board of directors, control over worker Need for Worker Company must show it actually needs the sponsored H-1B position Salary Selection of position, prevailing wage, ability to pay, actual payment of salary H-1B Cap Problematic unless already cap-exempt or concurrent H-1B employment Existence Issues specific to small or new/startup companies; proving bona fide existence
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  H-1B FOR ENTREPRENEURS– HOW TO START? POSITION & FUNDING •Title/Duties •Salary/Prevailing Wage •Company Finances •Need for Position STRUCTURE & RIGHT OF CONTROL •One vs. Multiple Owners •Company Control •Minority Owner/Board of Directors MISC. COMPANY •Office Space •Business Plan
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  E-2 INVESTOR VISA Nationalof “Treaty Country” Must be national of “treaty” country. China and India citizens are excluded but dual citizenship helps qualify. Spouses Employment authorization available to spouses At Least 50% Ownership The employer must be owned at least 50% by a national of a treaty country. Relatively Fast Process and Low Denial Rate * Application process can be fast; and relatively low denial rate. No Quota + Indefinite Extensions No annual cap and extensions can be indefinite. Employees get transfer easily.
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  E-2 INVESTOR VISA– HOW TO START? How Much to Invest? “Substantial” investment. Can include cash, expenses and IP value: patents etc. Business Plan + Financial Predictions Credible plans – business plan, financial projections, or prior tax/financial history. Corporate Documents U.S. entity incorporation, ownership Proof of Money Transfer Demonstrate that funds already transferred, invested, or in the process. Source of Investment Demonstrate source and ownership of funds invested. Consular Filing Application filed directly with US Consulate abroad (better) or with USCIS.
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  O-1 EXTRAORDINARY ABILITYVISA Surprisingly Good Chances Job Creation and Business Success Self-Sponsorship and Sponsor Ownership OK Must demonstrate “sustained national or international acclaim and recognition for achievements” or be at “top of the field” Good Long Term Option: Indefinite Renewals Applicable in Many Fields and Positions
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  O-1 VISA –HOW DO I QUALIFY? Press or Recognition Field or Commercial SuccessLesser Awards Significant ContributionAuthority One-Time Achievement A major, internationally recognized award OR Meet Three Regulatory Criteria
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  L-1 INTRACOMPANY TRANSFERVISA Work Abroad for One Out of Last Three Years Manager/Executive or Specialized Knowledge Allows Founders to Relocate to U.S. New Office vs. Established Presence Foreign Company Must Continue to Operate Helps with Growth and Staffing Overseas Relatively High Denial Rate
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  B-1 VISA –VISITOR FOR BUSINESS Startup Groundwork Lay groundwork for startup & visa steps Common Uses Research, meetings, presentations, conferences Temporary Activity No productive employment for US co. Six Months Stay Three months for Visa Waiver No Compensation From US source. Back-pocket Letter At time of US entry to show purpose of trip
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  WHY NOT F-1OPT/STEM OPT? New STEM OPT Rule Mentoring and Training Plan (MTP) eliminates the option for F-1 students to run and work for their own startup company.
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  PICKING THE RIGHTVISA TYPE FOR YOU Applicant: H-1B1 E-22 O-1 B-1 L-1A (Manager) L-1B (Specialized) Has Access to Capital Possible Best Unlikely Possible Unlikely Unlikely Has Co. Abroad Possible Best Possible Best Best Best Is an H-1B Worker Best Possible Possible Unlikely Unlikely Unlikely Is Among the Best in Field Possible Unlikely Best Unlikely Unlikely Unlikely 1 Must have cap H-1B or work concurrently for cap-exempt employer. 2 Treaty country nationals only.
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  Q&A Session
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  Thank you!