Us visa options for foreign entrepreneurs

Introductions!
• Immigrant myself!
• Owner/Principal Attorney- Law Office of Sweta
Khandelwal based in the Bay Area
• Chair, Silicon Valley, American Immigration
Lawyers Association (AILA)
• Advocacy & Media Liaison, AILA
• “Top 40 under 40” Immigration Attorneys in CA
• Understanding of how US Immigration laws
intersect with entrepreneurship
• Overview of various work visas that can be used
by foreign entrepreneurs and start-ups
• Appreciate how seeming small changes in fact
patters can effect available visa options
3333 Bowers Avenue Suite 130 Santa Clara CA 95054
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Email: sweta@khandelwalaw.com Web: www.khandelwalaw.com
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© Copyright 2012 Hewlett-Packard Development Company, L.P.

HP Confidential

Welcome!

Employment Based US Visas for Entrepreneurs, Startups, and Small Businesses
Capital Factory, Austin, TX
January 21st 2014
Sweta Khandelwal
Principal Attorney
Law Office of Sweta Khandelwal
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HP Confidential

Disclaimer

This presentation is not intended to
give legal advice.
It is for
informational purposes only.
It is
geared to help participants get a basic
understanding on how immigration law
and
practice
intersect
with
entrepreneurship.

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Agenda/ Roadmap
• Importance of Immigration
• Key non-immigrant work visas (NIV) or temporary visas
• Key immigrant work visas (IV) or permanent visas or Green Cards
• Case Study: Apply elements to potential scenarios

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Entrepreneurs, Start-ups & Immigration
Why is knowledge of US Visas critical to foreign entrepreneurs?
Description

Area
•

Why
Immigration

25% of high-tech companies founded between 19952005 had at least one immigrant founder
– Founders

on right visa to ensure continuity of the company
– Able to hire top global talent

• Get

creative

• Explore

USCIS &
Entrepreneurs

•

– Shift

– Old

•

Approach

Potential
Problem

Wine in a New Bottle-Old Laws, New Business

Creative & Customized – no one size fits all

• Be-proactive
• Stay

business accordingly
– Plan really ahead
•

Lack of standardization in applying laws
– Laws

have “gray areas”

Best immigration decisions are usually not good for business

(1) TBD
(2) TBD
Source: Source 1; Source 2; Source 3
4

in policy towards entrepreneurs

options

– Structure

•

Notes:

Entrepreneurs in Residence Initiative

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HP Confidential

all

informed

Agenda/ Roadmap
• Key Non-immigrant work visas
• Key Immigrant Work Visas

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HP Confidential

Non Immigrant/Temporary Visa Options
Relatively easy, quick and economical!
Typical purpose/ applicability

Type of visa
1

2

Visitors
B-1& Visa
Waiver
Program
Students
F-1 & OPT

3 Investors &
their E’ees
E-2

Notes:

(1) TBD
(2) TBD
6

•
•
•
•

Useful in the preliminary stages
Limited purpose
No employment in the US
No remuneration

•
•
•

Practical training- up to 12 months; +17 (STEM)
Full time & Part-time; multiple jobs
Not
No minimum wage required
applicable
for India
and China
Available to Treaty Nationals (TN)
Investor or Managers or Critical Employee
At least 50% of business must be owned by TN
Business must be controlled by TN

•
•
•
•

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HP Confidential

Non Immigrant/Temporary Visa Options
Relatively easy, quick and economical!
Type of visa
4

Inter-Co.
Transfer
L-1 Visa

•
•
•

5

6

Professional
Worker
H-1B Visa

•
•
•

Used for “Specialized Occupation” workers
Foreign National must have a Bachelor’s Degree
Only NIV for US Companies!

Extra-ordinary
Ability
O-1 Visa

•

Available for people in the arts, sciences or business
who are at the “top of their fields”
Must meet at least 3 criterion prescribed in law

Notes:

(1) TBD
(2) TBD
7

Typical purpose/ applicability
Existing foreign business can set up “affiliated” US
business
E’ee employed by overseas business for at least 1 year
out of the preceding 3 years
Managers(L-1A) & Special. Knowledge workers (L-1B)

•

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HP Confidential

Visitor Visas: B-1 & Visa Waiver Program
(VWP)
Who is eligible
Temporary visitor for
business

What it takes to succeed

Both B-1 & VWP to be used
for
limited purposes
• Negotiate contracts
• Attend meetings
conferences
• Independent
research
VWP
• 37 participating
countries
• Cannot change or
adjust status
• 90 Day Limit
• Can still apply for B-1





Must demonstrate non-immigrant intent
Cannot be employed in the US
No remuneration to be received

What sucks

What's great?
 Convenient, economical
 Quick process
 Great during
early/planning stages

 Law unclear as to what
activities are permitted
and what are not
 No appeal against
denial-must reapply

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Student Visa: F-1 & OPT
Who is eligible


 Those who are studying
full time (Grad. Undergrad.
Ph.D. in accredited
schools
 Generally, no employment
while student is in school
 Up to 12 months of
training/work permit after
completion of program
 17 additional months for
STEM graduates
 STEM only for E-Verified
Companies

 Completion of your academic program!
 Importance of accredited/reputed schools
 Cannot be out of job for more than 90 days during
OPT period
 STEM extension must be timely applied
What sucks

What's great?
 Great for start-upsincubator/accelerator
 No wage requirement
 Full time, part-time,
multiple jobs
 Cap-Gap solved

 Nothing-It’s a great
option!
 Limited duration-29
months max; must then
move to another visa
 Timing issues

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HP Confidential

Visa for Investors & their Employees: E-2
Who is eligible


 Those from E-2 country listTreaty Nationals
 Investors who develop &
direct the US Company
 Executive/Manager/Critical
Employees/Special. Know
 Treaty Nationals must own
at least 50% of the business
 Generally, all nationals must
be from the same Treaty
country
 If 2 nationalities involved,
both must have equal
ownership & control








Investment that is “at risk”-irrevocably committed
Business is substantial; more than marginal return
Great business plan required
Source of funds must be legitimate-gifts, salary, o.k
Money could have been earned in US or abroad
Loans-only those secured by personal assets
What’s Great?

What sucks

 No high threshold
investment$
 Can use intangible assets
if properly valued
 Spouse of E-2 can work

 Problem with VC fundingcontrol/ownership
 No set min. $ investmentunclear
 No immigrant intent-no
path towards GC

G

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Inter-Company Transfer: L-1 Visa
Who is eligible


 Foreign business can set
up an “affiliated” US
business
 Affiliate relationship
defined in law
 FN must be employed by
the overseas company
for at least 1 yr. in the
preceding 3 years
 Both owner/employee
may be eligible
 New Office vs.
Established Office

 Eligibility requirements critical
 Both Foreign and US Company must be in business
 Evidence of relationship between the two companies
to be extensively documented

What sucks

What's great?





Great for overseas co.
No min. salary reqd.
No fixed no. of visas
CEO can spend time in
US and home country
 GC for L-1A-EB-1

 L-1A for owners & small
business is tougher
 New Office L-1 req.
 Proving 1 year
employment when no
salary

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HP Confidential

Specialty Occupation Visa: H-1B
TN Visa-Professionals Canadians
& Mexicans-no self employment

Who is eligible
 Visa for Professionals
 Position must be a
specialty occupation
 Foreign National must
have a Bachelor’s Degree
 Visa tied to the sponsor
company

 An organization structure that establishes an
employer/employee relationship b/w US business &
Foreign National (FN)
 Proof that there is enough work/specialty occupation
for the duration of the petition
 A great story!
What sucks

What's great?




Once FN is on H-1B,
can change between
employers with relative
ease
Part-time and full time

 Limited visas-Quota
 For founders, e’er/e’ee
relationship is hard
 Specialty occupation for
founders is a challenge
 Minimum salary-high

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HP Confidential

Visa for Extra-Ordinary Ability: O-1 Visa
Who is eligible
 An individual who has
extra-ordinary ability in the
arts, sciences and
business


•
•
•
•
•
•

 Sustained
national/international
acclaim
 Distinction in the field

National/Internationally recognized award
Membership in assoc. in the field based on ability
Published material in trade journal or other media
Judging the work of others
Scholarly articles in the field; original contribution
Prestigious org., critical capacity, high salary

What’s great?

 Visa focus on person, as
opposed to company
 Must show that FN meets
at least 3 of the eligibility
criterion







No Quota
No restriction on salary
Renewed indefinitely
A path to GC-EB-1
Room for creative
lawyering!

What sucks



Burden of proof is high
Not everyone can
qualify

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Agenda/ Roadmap

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Immigrant/Permanent Visa Options
Challenging, time consuming, and expensive!
Type of visa


1
EB-1

Eligibility requirements
Three categories; two relevant here

Extraordinary Ability Workers –O-1?



2



Multinational Executive & Managers-L-1?

EB-5

Notes:

(1) TBD
(2) TBD
15

Not really useful for entrepreneurs

Investor based GC



Investment must meet all established criterion



3





EB-2/EB-3

$500,000-$1,000,000

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Employment Based Immigrant Visa: EB-1
Who is Eligible


Available to three groups:

 Extraordinary Ability
(similar to O visa);
 Multinational
Exec./Man. (relevant
for those on L-1A
visas);

 Extraordinary Ability-outstanding achievers
 Multinational Executives& Managers-L-1A-must show that
FN has managerial duties and supervises over
professionals



No Labor Cert.
required





Burden of Proof –highhigher than NIV

For Extr. Ability no
employer is required



 Professors and
Researchers

What sucks

What's great?

Visa Bulletin is
current-India & China

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Employment Based Immigrant Visa: EB-52
 AnyWho is Eligibleto
investor willing
 invest at least $1 million of
their own funds; or
$500,000 if investment is
in a TEA

 Investment must be in a
New Commercial
Enterprise
 The business must employ
at least 10 US workers full
time
 Investor must be involved
in day to day management
of the company
 Conditional GC issued for
2 years







Demonstrate the source of funds-own and legit
Two years to show that all conditions have been met
A comprehensive business plan required
Loans o.k so long as secured by personal assets
Investment must be “at risk”

What's great?

 Model not suitable for
Investor gets Green
entrepreneurs
Card for entire family
 $500,000 Invest. can me  Requires investment of
own money in business
made in Regional Centers
while investor works on
his/her own business



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What sucks

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Agenda/ Roadmap

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Launching a cool mobile payments
business in France
Clemente –
French
Application
Developer Par
Excellence

•

Bachelors
Engineering- wants
to do an MBA in
the US

Moracio–
Italian
Brillianto
Hacker
•

No formal degree
in EngineeringWants to get one in
the US

Jean Paul–
French
Technologist
with business
mindset

•

Bachelors degree
in Engineering;
considering a
Master’s

Status of their start-up
 Working on an IPhone/Android app. that they claim
will revolutionize the way handheld devices are used
to make payments
 Bootstrap efforts /money to create a beta version
 Incorporate a business entity in France

19

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Successful Trip to the US
Win hackathon

 Clemente and Moracio enter the US on the Visa
Waiver Program
 Participate and win $100000 in the grand
hackathon-Can they?
 Incorporate a company in the US- Should they?

Meet some people

“Keen on the
business- tell
me more”

Santiago
Mexicano:
Eng. graduate
looking for a job

Chong:
Chinese PhD
student
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“Have
contacts
with VC :
Can I
help”

Dr. Daring
Chong’s
advisor and
USC

Decisions to be made
Best for Business vs. Best for Immigration





Structure: Who will be CEO
Investment: How little/much can we invest ?
Funding: Can we get VCs to show interest ?
School: Can we go to Grad/ MBA school? Can
we work in the business while at school?
 Payouts: Salary ? Dividend? None?
 Business continuity: someone in France to
manage? Travel between US and France?

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Scenario 1: Trio do not invest own $ in
the business
This is what they do
Clemente –
Application
Developer ;
goes for MBA

Moracio–Italian
Brillianto Hacker
thinks school not
worth it!
Jean Paul–French
Technologist with
business mindset
comes to the US to
meet VCs and gets
Dr. Daring-USC on
BOD –VC

What are available visa options?
Clemente





No Change of Status from VWP to other
NIV
F-1; 12 months OPT; then
Choice: O-1 vs. H-1B
OPT then H-1B
• Cap/Gap
What about
• Quota
the E-2?

Moracio
 O-1-CEO?
Jean Paul

B-1 or VWP for now

H-1B
Santiago
 May work on TN

Problems with H-1B?
Remember-H-1B must be paid a certain salary

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Scenario 1: Trio do not invest own $ in
What about the E-2-now that we
have VC?
the business
But they do things
differently

Now, What are available visa options?

Clemente –
Application
Developer
drops plan for
school
Moracio–Italian
Brillianto Hacker
decides to opt for
formal education
Jean Paul–French
Technologist with
business mindset
manage the business
from France-gets
French VC

1. Moracio
 Can’t join co. unless finishes school
(Eng.)
 After school, 29 months OPT
2. Clemente
 Can be an E-2 employee as
long as 50% co. owned by French nationals
 Moracio can work on OPT & have a
minor stake in the company Problem with dual nationality if Moracio
wants to come in on E-2; H-1B better?
3. Jean Paul
 Can come on E-2
 L-1 after at least a year so long as
French entity is active and “affiliated”
with US co.
4. Santiago
 May work on TN

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HP Confidential

Scenario 2: Trio do invest own $ in the
business
This is what they do
Clemente –
Application
Developer $

Moracio–Italian
Brillianto Hacker
$$

Jean Paul–French
Technologist with
business mindset
$

What are available visa options?
1. E-2 for all
So long as business in owned and controlled
equally by nationals of both Treaty countries

2.
H-1B for any
Will benefit if at least 1 USC on BOD; and H-1B
holder does not have majority stake
3.
O-1 for Clemente & Moracio
Possible. O-1 focused on individual more than
company

4.
Jean Paul
L-1 after a year; may shuttle b/w US & France
so long as majority work/time in US

In all scenarios Santiago may work on TN
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It’s not the end!
There is a ton of useful stuff still available-here’s where & how
•

To win a 45 minutes free consultation (valid
for the next 6 months), drop your business
card and participate in a raffle!

•

Visit my website at www.khandelwalaw.com.
It has relevant and practical insights,
informational video’s, FAQ’s, and more.

•

For specific questions about your case, email
me at sweta@khandelwalaw.com

•

Contact details are also available by scanning
the QR code below:

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