immigration options for entrepreneurs
TRANSCRIPT
May 2016
IMMIGRATION OPTIONS FOR ENTREPRENEURSSTARTING A COMPANY
No Attorney-Client Relationship. Not Legal Advice.
Dimo Michailov | [email protected]@cilawgroup
Aleksandra Michailov| [email protected]@aleksmichailov
THE BAD NEWS…
AND THE GOOD NEWS…
“America remains a beacon of entrepreneurialism” … and there are still a number of good options for startups and entrepreneurs…
TOPICS COVERED TODAY
Picking the Right VisaHow to pick the best visa type?
Common Visa TypesEligibility and requirements.
Corporate StructuresOverview of common types.
Requirements to Work Rules about “working”
Questions and Answers…and discussion.
REQUIREMENTS TO WORK IN THE U.S.
Work Authorization Required
Visa Needed to Start Co.?
Taking Profits or Being on Company Payroll`
Working as Volunteer
COMMON CORPORATE STRUCTURES
01
02
03
Flexible and 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 StateCan incorporate in one state, but register and do business in another.
CPA/Corporate HelpPlan for tax, structure and immigration issues together.
COMMON VISA TYPES
H-1B E-2 O-1 B-1L-1
H-1B FOR ENTREPRENEURS – MAIN ISSUES
01 02 03 04 05
Right to ControlOwnership, board of directors,
control over worker
Need for WorkerCompany must show it actually
needs the sponsored H-1B position
SalarySelection of position, prevailing
wage, ability to pay, actual payment of salary
H-1B CapProblematic unless already cap-exempt or
concurrent H-1B employment
ExistenceIssues specific to small or
new/startup companies; proving bona fide existence
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
E-2 INVESTOR VISA
National of “Treaty Country”Must be national of “treaty” country. China and India citizens are excluded but dual citizenship helps qualify.
SpousesEmployment authorization available to spouses
At Least 50% OwnershipThe 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 ExtensionsNo annual cap and extensions can be indefinite. Employees get transfer easily.
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 PredictionsCredible plans – business plan, financial projections, or prior tax/financial history.
Corporate DocumentsU.S. entity incorporation, ownership
Proof of Money TransferDemonstrate that funds already transferred, invested, or in the process.
Source of InvestmentDemonstrate source and ownership of funds invested.
Consular FilingApplication filed directly with US Consulate abroad (better) or with USCIS.
O-1 EXTRAORDINARY ABILITY VISA
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
O-1 VISA – HOW DO I QUALIFY?
Press or Recognition
Field or Commercial
SuccessLesser AwardsSignificant
ContributionAuthority
One-Time AchievementA major, internationally recognized award
OR
Meet Three Regulatory Criteria
L-1 INTRACOMPANY TRANSFER VISA
Work Abroad for OneOut of Last Three Years
Manager/Executive or Specialized Knowledge
Allows Founders to Relocate to U.S.
New Office vs. Established Presence
Foreign Company MustContinue to Operate
Helps with Growthand Staffing Overseas
Relatively High Denial Rate
B-1 VISA – VISITOR FOR BUSINESS
Startup GroundworkLay groundwork for startup & visa steps
Common UsesResearch, meetings, presentations, conferences
Temporary ActivityNo productive
employment for US co.
Six Months StayThree months for
Visa Waiver
No CompensationFrom US source.
Back-pocket LetterAt time of US entry to show purpose of trip
WHY NOT F-1 OPT/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.
PICKING THE RIGHT VISA 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.
Q&A Session
Thank you!