Coming to America: A Primer on Visas for Foreign Entrepreneurs
Obtaining an American work visa is a notoriously complex process. Karan Mehta, an early stage investor at Octopus Ventures, breaks down some of the most common visa categories for European companies.
Expanding to the U.S. can be an important milestone for European startups, but despite careful planning and a robust go-to-market strategy, with so much on a founder’s plate, it’s easy to overlook the immigration and visa process.
Let’s start with some collected good-to-knows
- There’s no set timeline in obtaining a visa, each case being different.
- Most founders underestimate the time it takes to obtain a U.S. visa.
- Keep your ownership documentation clear and available, with everyone’s documented responsibilities, showing who reports to whom.
- Clerical errors and other unexpected issues can significantly increase that timeframe. If you’re planning to be there personally to oversee your U.S. expansion, be sure to factor in the visa processing time before planning your go-to-market.
- Choose the right immigration attorney - Do you get along with them? This is someone who will know intimate details about your business, so you will want this person to be someone you can talk to, someone who understands your needs and listens well. Do not make your selection solely based on cost, and make sure you’re accepting advice from someone with an advanced degree on the topic and is focused only on immigration.
There are about 185 different work visas for the United States
Securing the right visa requires thorough due diligence. Most companies only require temporary “non-immigrant visas” but even then there are several options to choose from depending on your situation. To help ease the process, we spoke with several immigration attorneys and identified the most commonly used non-immigrant visas that European founders can utilize when applying to live and work in the U.S.
E-2 Treaty Investor Visa
The E-2 Treaty Investor visa is for founders planning to open and invest in a business in the U.S. The benefit is that it can be renewed indefinitely and spouses can obtain work authorizations. E-2 visas are also available to employees/managers of the business, provided they share the same nationality as the investor and are considered an executive or essential employee who possess specialized skills related to the business’ operation. The downside of an E-2 is that it does not create a path toward a permanent green card.
In order to qualify for the E-2, you would need to answer YES to the following questions:
- Is your company’s nationality among the 80+ treaty countries (a companies nationality is the nationality of at least 50% of shareholders)?
- Do you (or the applicant) share common nationality with your company?
- Is your company making substantial, active investments in the United States?
Pro-tip
There is a common misconception that a minimum investment amount of $100,000 is required to qualify as substantial for an E-2 visa when in fact, there is no designated minimum investment required. Instead you must be able to show that your investment is significant relative to the overall costs of setting up your business. Before you apply, be sure to check with the U.S. consulate where you’ll be making your application, as what counts as substantial is largely up to the discretion of the consular officer.
E-1 Treaty Trader Visa
Another common visa for European startup founders is the E-1 Treaty Trader visa, which allows individuals or employees of companies from select countries to enter the U.S. for the purposes of international trade. Like the E-2 visa, the E-1 allows you to bring your spouse and children with you and also allows you to travel freely in and out of the U.S. E-1 visas expire after two years at which time you must refile for an extension.
In order to qualify for the E-1, you would need to answer YES to the following questions:
- Is your company’s nationality among the 80+ treaty countries (a companies nationality is the nationality of at least 50% of shareholders)?
- Do you (or the applicant) share common nationality with your company?
- Is your company actively involved in substantial trade with the U.S.? (at least 50% of your company’s trade should be between the US and the treaty country)
General Documentation Required for E-1 & E-2 Visas
- You must provide extensive documentation detailing any investments or trade made within the U.S.
- You must provide documentation pertaining to the business enterprise (incorporation docs, lease for office space, tax registration docs, bank account statements, etc.)
- For newly established startups, consulates typically ask for a five year business plan containing information about the company’s projected growth/expansion, additional trade with/investment in the U.S., hiring projections, and financial projections.
L-1 Visa
The L-1 visa (aka intra-company transfer) allows companies to temporarily transfer employees from a foreign entity to a parent, subsidiary, brand, or affiliate within the U.S. L-1 visas for new office situations are granted for one year but can be renewed up to 5 or 7 years in total. L-1s for established offices are initially granted 3 years, with 2 year extensions up to 5 or 7 years.
In order to qualify for the L-1 visa, you would need to answer YES to the following questions:
- Have you been employed by your company for at least one year out of the last three years?
- Are you in an executive, manager, or “specialized knowledge” capacity
- Will the foreign company remain open and operational during the period of your L-1 employment in the U.S.?
L-1 visas are broken out into two classifications, L-1A and L-1B. L-1A pertains to applicants working in an executive capacity (Vice President, CEO) or managerial capacity (department or subdivision heads). L-1B is for employees with “specialized knowledge” — these are individuals considered vital to the business’ operations due to special knowledge of the company’s products and/or processes and their application within the international markets.
General Documentation Requirements for L Visas
- Extensive documentation proving the corporate relationship between the foreign company and U.S. company (i.e. incorporation docs, stock certificates, operating agreements, etc.)
- Evidence demonstrating your managerial, executive, or specialized knowledge capacity (i.e. detailed job descriptions, org charts, etc.)
- If you are part owner of the company (either foreign or US entity), you would need to provide additional documentation proving that a bona fide employer-employee relationship exists between the company and employee despite ownership interest held in the company
O-1A Visa
The O-1A is a special visa for individuals and entrepreneurs who can demonstrate extraordinary abilities (applies to business, science, education, sports, and the arts). The applicant can show evidence like a major, internationally-recognized award, such as a Nobel Prize, or at least three of the following:
- Receipt of nationally / internationally recognized awards for excellence in your field
- Membership in reputable associations relevant to your field
- Published material about your work (publications/media)
- Participation on panels, speaking engagements
- Original contributions of significance to the field (scientific, scholarly, or business-related)
- Authorship of articles that land in professional journals
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
- High salary (relative to others in a similar field) consistent to the top U.S. earners; this can be proven through your annual tax return or some form of contract indicating your “per project” earnings
Initially, the O-1 can be approved for up to three years and can be renewed indefinitely. After the initial three years, extension must be filed on an annual basis.
Pro-tip
Although only three forms of documentation are required for an O-1 visa, the United States Citizenship and Immigration Service (USCIS) will often ask for additional evidence. It is best to be able to provide at least 5–6 of the above criteria to be safe. It’s also recommended to obtain at least 7–10 letters of recommendation from well-known folks within your area of expertise.
H-1B Visa
Finally, there is the H-1B visa. Generally, this visa is used for businesses that are already established in the States. Only 65,000 are issued per year and it is essentially a lottery, with ⅓ chance of success. Companies begin applying in April with the visa initiating in October.
In order to qualify for the H-1B, you would need to say YES to the following:
- Does the job which you are applying for require a U.S. bachelor’s degree (or a foreign equivalent) in a specific field?
- Do you possess a bachelor’s degree or have equivalent experience?
- Is your employer willing to submit a Labor Condition Application (LCA)?
The LCA must be reviewed and authorized by the Department of Labor, agreeing to pay H1-B beneficiaries the same wage and provide the same benefits as other non-H1-B employees at the company.
General Documentation Requirements for H-1B
- Your US-based employer will need to submit a detailed job description demonstrating that the offered position qualifies as a “specialty occupation”, essentially proving the position requires a U.S. bachelor degree or the foreign equivalent.
- Your US-based employer will need to include a certified copy of the Labor Condition Application (LCA) — this simply proves that the employer will compensate you the same as a comparable US employee.
- Proof you’ve obtained a 4-year U.S. bachelor’s degree related to the job or an equivalent (via an educational equivalency evaluation).
- If you’re part owner of the company (either foreign or US entity), you would need to provide additional documentation proving that a bona fide employer-employee relationship exists between the company and employee despite ownership interest held in the company.
Pro-tip
Documentation requirements vary based on the amount of ownership in the company held by the employee. For employees with greater than 50% ownership interest in the company, it will be difficult to establish that a bona fide employer‐employee relationship exists for purposes of H‐1B visa eligibility, so might be best to take an alternative route.
Bottom Line
When it comes to American work visas, there are many categories to choose from. Immigration policies often change with each new Administration and new legislation. Keeping up with those changes is a full-time job in itself; our advice is to start early and maintain regular contact with a reliable immigration attorney.
Recommended Specialists:
Gloria Lin, Immigration Law Group
Marie Gunderson, DiRaimondo & Schroeder
Paul Samartin, Ganguin Samartin
