Business Visits

Visa Waiver Program: Under the Visa Waiver Program (VWP), nationals of most European countries are eligible to engage in certain business activities in the U.S. without a visa. 

Who is eligible?

Individuals holding a passport from the following countries are eligible for the VWP:

Who is not eligible?

• Persons from non-VWP countries.
• Persons deemed a security risk.
• Persons with criminal convictions.
• Persons who previously violated U.S. Immigration law.

What can I do while in the U.S.?

A person entering the U.S. under the VWP may engage in the following business activities:

• Commercial transactions not involving gainful employment.
• Negotiating contracts.
• Litigation.
• Consulting with clients or business associates.
• Participating in scientific, educational, profession, or business conventions, conferences, or seminars.
• Consulting with clients or business associates.
• Undertaking independent research.
• Exploring U.S. investment opportunities.

What can’t I do?

• Engage in productive employment.
• Manage a U.S. enterprise.
• Receive a salary from a U.S. source.
• Stay more than 90 days. 

Can I extend my stay?

No, you cannot extend your stay beyond 90 days under the VWP.  You must depart the U.S. and re-enter under the VWP to receive a new 90 day stay.  However, be advised that a pattern of multiple 90 day stays within a calendar year will raise suspicions that you are engaging in productive employment.  This may result in being placed in secondary inspection at the airport and possible refusal of entry.

Opening and Staffing a New Office in the U.S.

L-1 Multi-national Transfer Visas: If a foreign company wishes to open a new U.S. branch, affiliate, or subsidiary, Immigration will allow for the transfer of one managerial or executive employee to open and manage the new U.S. entity through the initial start-up phase (one year period).  The L-1 Visa enables foreign companies to transfer managerial, executive and specialized knowledge employees to a U.S. parent, subsidiary, affiliate or branch who have been employed at the foreign company for at least one year. 

After the initial one year start up period, the L-1 executive or manager can seek an extension of status provided the staffing levels of the new office are adequate to justify the full-time employment of an executive or manager.  Additional L-1 managerial transfers can also be made if staffing levels are at a high enough level.

What is required for a new office L-1?

• Formation of a U.S. entity having a qualifying corporate relationship (branch, affiliate, subsidiary or parent) with the foreign entity currently employing the proposed L-1 transferee. 
• Execution of a 1 year commercial lease for the new U.S. office.
• L-1 transferee has held a managerial or executive position for at least one year at the foreign company.
• L-1 transferee is being transferred to the U.S. to open and manage the new U.S. entity.
• The foreign entity has been doing business for more than one year and will continue to do business while the L-1 transferee is in the U.S.
• Business Plan to demonstrate that within a year of granting the L-1 visa, the U.S. entity will have adequate support staff to perform non-managerial job duties.

Potential Pitfalls

• Inability to hire sufficient staff within the one year new office period to justify full-time employment of the L-1 executive or manager necessary for an extension of L-1 status.
• Maintaining existence of foreign entity.
• Securing sufficient physical premises to house the new office.

E-1 Trade Visa/E-2 Investor Visa: The E visa category allows foreign nationals who are citizens of treaty countries or companies majority owned by citizens of treaty countries to start businesses in the U.S.  There are two types of E visas.  The E-1 Visa is for foreign nationals or companies who engage in substantial international trade of goods, services, or technology between their home country and the U.S.  The E-2 Visa allows foreign investors or companies to direct and develop a U.S. business in which the investor has either already invested or is in the process of investing substantial funds.  E visas are valid for 5 years and E visa holders are admitted to the U.S. for two year periods.  The foreign national can renew the E visa indefinitely as long as they continue to maintain an E business in the U.S.

E-1/E-2 companies are also allowed to hire foreign workers who are nationals of the treaty country for executive and managerial positions, as well as individuals with skills essential to the operation of the business.

Advantages over the L-1 visa

• No one year limitation for the new office manager.
• No limit to the number of years in the E status (L-1 has a seven year max).
• No requirement that the E employee was previously employed with the foreign company.

Options for Foreign Start Ups

For foreign start ups the options for opening and operating an office in the U.S. are limited.   However, on November 20, 2014 President Obama proposed executive action to promote research and development in the United States.  President Obama directed the U.S. Department of Homeland Security (DHS) to enhance opportunities for foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the United States.  The President directed DHS to implement two administrative improvements to facilitate this goal:

National Interest Waiver Program:  Under the National Interest Waiver (NIW) Program an individual can self petition for permanent residency in the U.S. if he or she possesses a Master’s degree or higher or is a person of exceptional ability and can demonstrate their admission to the U.S. is in the national interest.  The NIW is currently under utilized because there is limited DHS guidance on the national interest standard.  President Obama has ordered DHS to issue guidance or regulations to clarify the standard.   To date, DHS has not released the new guidance.

What is currently required under the NIW program?

Under the current NIW program you must either possess the U.S. equivalent of a Master’s degree or demonstrate you are a person of exceptional ability in your field.  Proof of exceptional ability can be shown by any three of the following:

• Degree relating to area of exceptional ability.
• Letter from current or former employer showing at least 10 years of experience.
• License to practice profession.
• Person has commanded a salary or remuneration demonstrating exceptional ability.
• Membership in a professional association.
• Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

In addition to having a Master’s degree or establishing exceptional ability, you must show that your work is of substantial intrinsic merit and will benefit the U.S. on a national level.  Under the current standard Immigration considers the following factors in determining if your work is in the national interest:

• Improves the U.S. economy.
• Improves wages and working conditions for U.S. workers.
• Improves education and programs for U.S. children and under-qualified workers.
• Improves health care.
• Provides affordable housing.
• Improves the U.S. environment.
• The U.S. government has expressed interest in your work.

The factors to be considered will be expanded under President Obama’s program.

“Significant Public Benefit” Parole Program for Entrepreneurs: Under this proposed initiative, and based on the DHS’ existing statutory parole authority, DHS may extend parole, on a case-by-case basis, to eligible founders of start-up enterprises who may not yet qualify for a national interest waiver.  Parole is not a visa status or admission to the U.S., but is an authorized stay in the U.S.

Founders of start-up enterprises may qualify for this proposed program if they:

• Have been awarded substantial U.S. investor financing; or
• Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

To date, DHS has not implemented this new program.

E-2 Investor Visas for Founders/Principal Investors: As mentioned above, the E-2 Visa allows foreign investors or companies to direct and develop a U.S. business in which the investor has either already invested or is in the process of investing substantial funds. 

What is required?

• U.S. investment treaty with home country.
• Substantial investment in a U.S. business enterprise.
• Investment funds must be in investor’s sole possession and control.
• All investment funds must be “at risk” for partial or total loss, if the investment fails.
• Investor must develop and direct the business.
• Investor must own at least 50% of the business.
• Business must earn investor more than a marginal income (more than minimal living for investor and family).

What is considered a substantial investment?

When determining if an investment is substantial, Immigration assesses the percentage of the investment in relation to the cost of the business.  The higher the percentage of the investment the more substantial the investment will be.

When are investment funds considered at risk?

The capital must be subjected to partial or total loss if investment fortunes reverse.  The investment funds must be the investor’s unsecured personal business capital or capital secured by personal assets.  Keep in mind that the investment funds can be placed in escrow to purchase the business pending approval of the E-2 visa. 

Conclusion

As you can see, there are many immigration issues to consider when doing business in the U.S.  Therefore, it may be helpful to schedule a consultation with an Immigration expert as you plan your U.S. company.

Disclaimer: This article discusses general immigration issues, but it does not constitute legal advice.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of legal counsel.