Visa Options for Foreign Investors and Entrepreneurs

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By John E. Exner IV

Many U.S. startups are co-founded by foreign nationals, and for those that are not, all start-ups need capital. Fortunately, it is not necessary to limit the potential investor pool exclusively to U.S. citizens and permanent residents. A large number of U.S. startups are either co-founded or funded by foreign investors, and the U.S. government understands that in order to attract foreign investment into the U.S. economy there must be designated visa categories available to those investors. These specific visa categories were established to allow investors and co-founders to travel to the U.S. to manage and oversee their investment. While a wide variety of visas may be applicable to any situation, the two most common visa categories utilized by foreign investors and entrepreneurs are the E-2 and the L-1A “new office” visa.

E-2 Visa. The E-2 visa is available to foreign nationals who are looking to invest in a new or existing U.S. business. The law does not specifically require a minimum investment amount; however, the investment must be “substantial” in relation to the nature of the business operations. Additionally, there must be a reciprocal treaty between the U.S. and the investor’s home country, and at least 50% of the U.S. company must be owned by the investor or a pool of investors that share the investor’s same foreign nationality. If these essential elements exist, the E-2 visa is often the most attractive immigration option for foreign investors and entrepreneurs.

L-1A “New Office” Visa. The L-1A visa is an “intracompany transferee” visa that is available to foreign nationals who work in managerial or executive occupations, and are transferring from a foreign company to a U.S. parent, branch, or subsidiary. The visa includes newly formed U.S. offices and businesses, provided that the newly formed U.S. office is established as a subsidiary, affiliate, or parent of a foreign company, and that the foreign company will continue operations abroad. This visa is attractive when the foreign investment into the U.S. business is made through a foreign company, as opposed to a foreign individual investor, as it allows multiple employees from the foreign company to be transferred to the U.S. office. The L-1A visa requires proof that the foreign national transferee has worked for at least one full year for the company abroad before entering the U.S., and that the U.S. office has sufficient financial or operational resources to conduct business in the U.S.

While there are many other U.S. work visas that may be available to foreign national investors and entrepreneurs, the E-2 and L-1A visas are often the most attractive. If you are a foreign national looking to establish a new business in the U.S., or you are a U.S. startup that has recently attracted the attention of a potential foreign national investor, it’s important to discuss visa options with a qualified immigration attorney as early on as possible. Key steps will need to be taken in the funding or establishment of the company to ensure that specific visa options remain available.

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