US Founder Immigration — Startup Guide

Are you an entrepreneur and feel like going to the USA because you like winter in Florida and you have had enough of European politicians? Or maybe you are running a business in the USA, or you have a plan to invest in the local business or expand your European business in the US and would you like to be constantly on ground? As it turns out, a significant number of European entrepreneurs have no idea that this is possible thanks to E-1 or E-2 visas entitling them to permanent commercial residence in the USA. You should therefore check if you can apply for it.

Trade Visa to the USA - what and who can get it?

E visas are only available for citizens of countries that have entered into a treaty with the US. Persons whose commercial activity, including trade in technology or services, is predominantly conducted between Europe and the USA, and persons wishing to invest in a US company, may apply for E-1 visas (active entrepreneurs) or E-2 (investors), respectively.

Both visas are initially granted for a period of 2 years and may be renewed. Since both are non-migratory, they do not lead to obtaining a permanent residence permit in the USA (the so-called “green card”). On the basis of the type E visa obtained by the applicant, the applicant’s spouse and children, aged 21 and below, may also enter the United States after obtaining the E visa on the basis of the applicant's visa. On this basis, also the spouse can apply for a work permit in the USA.

General requirements. Who can get an E-type visa?

In simplified form, an E-visa can be obtained by a foreign citizen or an owner or a member of the company's management team, of which at least 50% of the company must be controlled by foreign entities. In addition, each applicant should have the will to leave the United States after the expiration of the E visa he has granted, because, as mentioned, it is not an immigration visa permitting the applicant to be resettled indefinitely.

Special requirements for entrepreneurs - E-1 visa

In addition to the above-mentioned requirements for both E-1 and E-2 visas, each applicant entrepreneur to receive the E-1 visa should conduct a "significant" trade exchange between the foreign country and the United States. Trade should be significant in terms of both size and continuity and ensure profitable business operations (trade can take the form of an exchange of goods, services or technology). The notion of meaningful trade, of course, is discretionary and does not involve a strictly defined quantity or commercial value. It is imperative, however, that over 50% of the applicant's total trade took place between the USA and the foreign country.

An applicant for an E-1 visa must be the owner or, in the case of employees of an entrepreneur who has been granted an E-1 visa, take a managerial position or have specialized skills that are necessary for the effective operation of the company. Examples of people who can apply for an E-1 visa:

  • The owner of a foreign company exporting widgets to the USA;
  • A software house which provides services to American companies;
  • A freelancer programmer providing services to American companies.

Special requirements for investors - E-2 visa

In order to obtain an E-2 visa, an investor should primarily invest capital or be in the process of making investments in the U.S. The investment must be substantial and should ensure the profitable operation of the company. If the planned project does not require large financial outlays, the percentage share of this investment in relation to the value of the entire undertaking should be high. If the transaction is high-volume, the percentage of investment may be lower. The notion of substantial investment, of course, is discretionary and does not involve a certain amount of investment.

The investor should have control over the company's financial resources and the investment should be commercial. It is important that when the application for an E-2 visa is considered, the capital invested is to be irretrievable. As a consequence, the funds available on the bank account will not in principle be considered as part of the investment.

In addition, the entire operation must yield income far above the maintenance costs of the investor and his family, and the applicant should have sufficient potential and qualifications to develop and manage the enterprise.

If the applicant is not the main investor, he should be in a management position or have specialist knowledge. As a general rule, ordinary employees, including even qualified employees, cannot obtain a visa of this kind. Examples of people who can apply for an E -2 visa:

  • An owner of a European restaurant who wants to open a branch in New York;
  • Founders and the management of a startup that opens an office in San Francisco.

Decision-making process for granting E-1 and E-2 visas

Please note that both visas: E-1 and E-2, are awarded on the basis of the discretionary decision of the official. Any fact or claim on which the applicant bases his / her application must be proven before the office. The freedom resulting from the discretionary power of US officials puts a certain challenge before the applicant but can also allow the applicant obtain an E-1 and E-2 visa in unconventional situations. As a rule, from the moment of submitting the application to the decision on this subject, it should not take more than a month.

Work immigration visas — employment-based (EB)

Visa immigration visas, i.e. visas leading to obtaining a permanent residence permit in the USA (the so-called “green card”) should be distinguished from visas for investors and entrepreneurs. We distinguish five types of visas in this regard:

1. EB-5 — for investors who intend to invest in the American economy over $1 million, creating or maintaining at least 10 jobs;

Most of the applicants for this visa are Chinese nationals, who intend to invest heavily in American commercial enterprises. The applicant must be involved full-time in the development of the business in which he has invested. The $1 million threshold does not mean that a single investor has to invest so much. It only means that the total amount of investment must be that amount, but the individual investor contributions can be much smaller. For example, in theory, it could be 10 European investors who invest $100,000 each for joint business in America. This means that each of the 10 will get an EB-5 visa for themselves and their closest family members.

2. EB-1 — for employees with pre-emptive rights;

The applicants for this visa must be people with outstanding scientific or business achievements who can document their international recognition in the field they are involved in. You can apply for an EB-1 visa regardless of whether one has any job offer in the US.

For example, an outstanding businessman or professor lecturing at prestigious universities and honored with international prizes.

3. EB-2 - for people with exceptional talents in the field of art, science, business and representatives of specific professions;

The EB-2 visa, unlike the EB-1 visa, is intended for people who have a job offer from an employer in the USA. Applicants for the EB-2 visa must have both professional experience and higher academic degrees or exceptional skills. Candidates for this visa must convincingly document their exceptional qualifications.

4. EB-3 - for skilled and unskilled workers;

To be able to apply for an EB-3 visa, each applicant must have a job offer with the US. This category of applicants includes employees who have at least a bachelor's degree. Applicants may include architects, engineers, lawyers, doctors, surgeons, teachers and other freelancers.

5. EB-4 - for the so-called special immigrants;

The subject matter of this visa includes priests or retired employees of the US government abroad.

It should also be remembered that the "better" EB visa category, the faster the application is considered. Together with the lower requirements, the queue of people willing to obtain this type of visa increases.

The American visa system offers many types of visas, on the basis of which you can enter or settle in the US. Nevertheless, it is worth to look at the E-1, E-2 or EB visas, which may be an interesting tool for the new wave of foreign entrepreneurs who want to periodically move to the United States.

Written by

Law firm specializing in startups, series A and US expansion. No legal advice I No attorney client relationship I Attorney advertising

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