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US Entrepreneur Visas for Business Owners

US Entrepreneur Visas for Business Owners

Starting a business in the United States can be an exciting prospect, but it’s important to first do your research before parting with any hard earned cash, either on creating a US start-up or investing in an existing business, especially when it comes to getting the right kind of visa.

Below we look at the different types of US entrepreneur visa available, together with the ‘emigrate to US requirements’ that must be met under each one. We also briefly look at the application process, how long each visa will last and the importance of seeking expert advice from an immigration specialist when it comes to applying for a US entrepreneur visa.

 

What US entrepreneur visas are available?

It’s entirely possible for a non-US citizen to start or invest in, and to subsequently oversee and run, a business in the United States, provided they have the right visa to do so. This means that a prospective entrepreneur will first need to obtain a suitable work visa.

There are various US entrepreneur visa options to choose from, including:

Short term visas

  • E-2 visa: for investors
  • E-1 visa: for treaty traders
  • O-1 visa: for those with ‘extraordinary’ ability or achievements

 

Permanent residence employment green cards

  • EB-5 visa: for investors
  • EB-1 visa: for those with extraordinary ability or achievements.

 

What are the requirements for each US entrepreneur visa?

The E-1 visa allows nationals of a treaty country to come to the United States solely to engage in international trade on their own behalf. To be eligible, the applicant must be a national of a country with which the US maintains either a treaty of commerce and navigation or qualifying international agreement, or is otherwise deemed a qualifying country. The applicant must also be coming to the US solely to carry on trade of a substantial nature, which is international in scope, and where that trade is principally between the US and the treaty country.

There are no minimum requirements regarding the monetary value or volume of each transaction to constitute ‘substantial trade’, where this phrase generally refers to an amount of trade sufficient to ensure a continuous flow of international trade items, as between the US and the treaty country. Items of trade include goods, services, international banking, insurance, transportation, tourism, and technology and its’ transfer. Principal trade between the United States and the treaty country will exist when over 50% of this international trade takes place exclusively between the US and the treaty country of the trader’s nationality.

The E-2 visa is also for nationals of a treaty country, in this case to come to the United States when investing in a US business. The applicant must be coming to the US to solely develop and direct the operations of either an existing or a brand new bona fide US enterprise in which they’ve already invested, or are actively in the process of investing, a substantial amount of capital. There are no fixed capital thresholds, although the investment must be sufficient to ensure the successful operation and development of the business, measured in a proportional sense, where much will depend on the type of business being invested in and its’ total cost. The applicant must also be able to show at least 50% ownership of the US enterprise, or possession of operational control, such as through a managerial position.

In contrast to the E-2 visa, the EB-5 visa provides a more long-term solution, allowing overseas investors to obtain US permanent residency. However, this will require a much higher minimum investment, of at least $500,000 in a new or existing US company, together with the ability to create or preserve ten permanent full-time jobs for qualified US workers.

As an alternative to the E-classification, and only for the small percentage of individuals with extraordinary ability or achievements in their specialised field, the O-1 visa will enable startup founders to live and work in the US while they grow their new business. The O-1 classification can be broken down into the O-1A visa, for individuals with an extraordinary ability in the sciences, education, business or athletics, and the O-1B visa, for those with an extraordinary ability in the arts or extraordinary achievement in film or television. The O-1 visa, although only for the elite few, is often a better option than the E-2 and EB-5 investor visas, as it doesn’t require any particular amount of capital to be invested.

To qualify for an O-1 visa, the applicant must demonstrate extraordinary ability, either by sustained national or international acclaim, or a record of extraordinary achievement, and must be coming to the US to continue work in their specialised area. The EB-1 visa is also for those with extraordinary ability or achievements, but grants permanent residency status.

 

How do you apply for a US entrepreneur visa?

The way in which an application is made for a US entrepreneur visa will depend on which category of visa is being sought by the applicant in question.

Treaty traders and investors must first register their business with what’s known as the E-Visa Unit. To do this, an application should be made electronically using Form DS-160, and by paying the relevant application fee and submitting a number of detailed documents in support. For an E-1 visa, this must include, for example, evidence of ownership of the treaty country business, together with proof of international trade between the United States and the treaty country. For an E-2 visa, the applicant will need to provide evidence, for example, that the US enterprise is a real and active commercial undertaking, and is one in which the treaty investor has invested, or is in the process of investing, a substantial amount of capital.

Once this review is complete, the E-Visa Unit will contact the applicant to arrange an interview date. They must attend this interview within a period of 90 days. A number of interview documents will need to be prepared in advance, including a copy of the confirmation page for the application form DS-160 and appointment confirmation page, the applicant’s passport, and a colour passport photo if one has not already been provided, to name but a few.

If the treaty trader or investor is already in the United States in a lawful nonimmigrant status, they can instead file Form I-129 to request a change of status.

For the immigrant EB-5 visa, the application process is slightly different, where the immigrant investor would need to file a petition using Form I-526, followed by either Form DS-260 to seek admission to the US from abroad, or Form I-485 to adjust their immigration status to a conditional permanent resident, for example, from an E-2 visa. If the application for an EB-5 visa is successful, the applicant will be granted conditional permanent residence for an initial two-year period. Shortly prior to the second anniversary of being in the United States as a conditional permanent resident, they will then need to petition to have the conditions on permanent residency status removed using Form I-829.

For the O-1 visa, the applicant will need to be sponsored by their own US business or company, using Form I-129. As with all other applications for a US entrepreneur visa, the petitioner must submit the required documentary evidence along with this form, including evidence of national or international acclaim, for example, proof of published material by themselves and others writing about them, or being the recipient of top prizes and awards.

For the linked EB-1 visa, the applicant will first need to file Form I-140, pay the relevant fee and provide supporting documentation, and only once this petition is approved can they then apply to become a lawful permanent resident, either through consular processing if outside the United States using Form DS-260 or by filing Form I-485 if in the US.

 

How long do US entrepreneur visas last?

The length of time that a US entrepreneur visa will be granted will again depend on the category of visa sought, and whether the visa is immigrant or nonimmigrant classification.

For the E-1 treaty trader visa and the E-2 treaty investor visa, these will be granted for an initial period of two years. This is because these visas are temporary nonimmigrant visas. They can be extended any number of times, in increments of two years each, provided the visa-holder continues to meet all of the relevant requirements and to maintain an intention to leave the United States when their lawful immigration status expires. The O-2 visa is also a temporary work visa, although permission under this classification will be granted for an initial period of up to three years, where extensions may again be sought.

A nonimmigrant visa will not provide a route to permanent residency, and their validity is also tied to the success of the business in the case of the E-1 or E-2 visas or, in the case of the O-1 visa, continuing to be outstanding in a specialised field. This means that even though nonimmigrant visas are generally easier to get than permanent residency visas, they are not always a great option for prospective entrepreneurs who want to stay in the US long-term. This is because, under a nonimmigrant visa, the visa-holder must usually return to their native country if their business fails or they decide they no longer want to operate the US business.

In contrast, the EB-5 and EB-1 visas are immigrant visas, which means that the visa-holder is in fact the holder of the highly sought after ‘green card’, where they can live and work in the US on a permanent basis. Initially, the successful visa applicant will be granted a conditional stay, but can subsequently apply to have these conditions removed.

 

Need assistance?

Applying for a US entrepreneur visa can be challenging, from deciding the best option for your circumstances, to building your submission and supporting documentation. The investor visas can also carry financial risk because of the requirement for substantial upfront investment, prior to applying, with no guarantee of securing a visa to oversee the running of the business.

Expert advice from an immigration specialist should therefore always be sought before starting up or buying a stake in a US business. In this way, your legal advisor can help you to safely navigate all of the potential pitfalls and maximise the prospects of a successful outcome — leaving you to get on with the job of making your business a success.

 

Entrepreneur visa FAQs

Do you need a visa to start a business in USA?

As a non-US citizen, you’ll need a suitable work visa to start a business in the USA if you’re also looking to oversee the running of this business in person, such as an E-2 or EB-5 visa.

 

Can I start a business in the USA as a foreigner?

It’s entirely possible for a foreigner to start a business in the USA, provided they have the right visa to do so, and meet all of the requirements for registering and running their business under both federal and state law.

 

Can I get a US visa if I buy a business?

If you buy a US business, this doesn’t necessarily guarantee the grant of a visa to oversee the running of that business, although you may be eligible for either an E-2 nonimmigrant visa or an EB-5 immigrant visa.

 

Can a visitor start a business in USA?

A foreign national can start a business in the USA without a visa, or without even coming to the United States, although an appropriate work visa will be needed to oversee the running of that business in person.

This article does not constitute direct legal advice and is for informational purposes only.

By Nita Nicole Upadhye

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