Revisiting U.S. Entrepreneur Visas

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With an election looming, President Obama touts his policy of encouraging “in sourcing” and discouraging “outsourcing” of services and manufacture of goods. In an effort to accelerate job creation, the Obama administration reiterates its full support to entrepreneurs. Policies and regulations relating to applications for immigrant and nonimmigrant investor visas have been revisited since last year to encourage investment.

Entrepreneurs’ Visas

There are various was for a foreign investor to obtain a U.S. visa. The most known type of visa is the “one million dollar” investment visa that will give the investor the status of a green card holder.

There is also the “exceptional ability visa” under the second employment-based category.  This type of visa focuses more on the “exceptional abilities and qualification” of the individual entrepreneur and how it benefits the U.S. economy instead of the amount of investment.

On the nonimmigrant visas or temporary visas, an entrepreneur may apply for the E1 or E2 investors’ visas. The E1 visa is the treaty trader visa where substantial trade of goods or services is conducted by the investor between the United States and the investors’ country of nationality. On the other hand, the E2 investor visa is issued to an individual entrepreneur who invests “substantially” in a U.S. enterprise.

How Much Investment

For the employment-based fifth preference visa or the immigrant investor visa, the amount of investment may either be one million dollars or five hundred thousand dollars depending on the location of the investment enterprise. For designated regional centers, the investor must be able to show at least half a million dollars for the immigrant visa to be approvable. In addition to this amount of investment, the immigrant investor must be able to show that the investment enterprise will create at least 10 jobs for U.S. citizens or permanent residents.

In regards to the nonimmigrant E2 investors’ visa, no specific amount is required. What the regulations require is for the investor to show a “substantial” amount of investment as distinguished from a relatively small amount of capital. To determine whether the investment is substantial, a proportionality test is used. This test considers the proportion between the amount of the funds actually invested and the value of the business.  The investment that equals or exceeds the value of the business usually considered substantial.

For E2 investors, even if no set amount is required, it is important to note that investment in a marginal enterprise is insufficient for the issuance of an investor’s visa. A marginal enterprise is where the investment does not have the present or future capacity to generate more than enough income to provide a minimal living income for the investor and his family.

The Exceptional Ability Entrepreneur

Another immigrant visa category that may be considered by entrepreneurs is the EB2 or the employment-based second preference. Under this category, individuals with exceptional ability in the field of science, arts or business may qualify for this visa. The expertise of the entrepreneur must substantially benefit the U.S. economy aside from showing that the skill is significantly above what is ordinarily encountered in the sciences, arts or business.

There are two alternative ways to obtain this EB2 visa. One is through a petition by a U.S. employer after the Department of Labor approves an application for labor certification. The other is through a self-petition if the entrepreneur meets the “national interest waiver” standards. If the entrepreneur’s business will create jobs for U.S. workers there is a strong probability that an immigrant visa will be granted.

Family Members’ Visas

Spouses and minor children of the immigrant or nonimmigrant visa entrepreneurs are also entitled to visas. They may join the principal investor in the United States. For those with temporary investors visas, the spouses can be granted employment authorization documents while the children are allowed to study in U.S. schools.

Open for Business

With the need for the U.S. to compete in the global economy and the support it gives to enterprises that stimulate job growth, Filipinos who are interested in diversifying their investments to the U.S. has various entrepreneur visa options. Entering the United States to develop and operate an enterprise is a serious commitment, as it will require placing substantial capital at risk with the hope of generating profitable returns. With the severe backlog in employment-based immigrant visas, and professional working visas always reaching its annual maximum cap, investing in an enterprise may be an available alternative.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

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