The United States is renowned for attracting the best and brightest from across the globe. Our nation’s capability to entice investors and budding entrepreneurs has led to revolutionary advancements that have forged new industries, expanded job markets, and opened up a plethora of opportunities for citizens.
Due to these economic benefits, the U.S. Citizenship and Immigration Service (USCIS) is committed to making it possible for non-citizen entrepreneurs to work in the U.S. On this page, we have prepared a guideline highlighting the most important immigration considerations for individuals contemplating investing or managing a business in the United States.
When choosing the right entrepreneur pathway for you, it is imperative that you ask yourself the following questions:
Some of the available pathways, like the International Entrepreneur Rule, require that you have a certain stake in the start-up entity you intend to work for. Other pathways like EB-5 Immigrant Investor and E-2 Treaty Investor require you to invest in the country. For others, you may be an investor or owner, but it’s not mandatory.
Well, that will depend on the pathway you choose to pursue. Some entrepreneur pathways require you to have a specific position or role in the start-up entity. Below is a breakdown of the requirement for some of the available pathways:
We will discuss these and other pathways in detail in the sections below.
We have already established that some pathways, like the International Entrepreneur rule, require you to own part of a start-up entity. In addition to that requirement, the entity must have been formed within five years preceding the initial application.
Another requirement is that the start-up must have substantial potential for growth and job creation. The L-1 nonimmigrant visa classification requires the entity’s new office to have a qualifying relationship (affiliate, parent, subsidiary) with a foreign entity that employed you abroad for at least one year.
Pathways such as the EB-1A immigrant visa classification and the O-1A nonimmigrant visa classification require that you have a qualifying “extraordinary ability.” This means that you must show that you have sustained national and international acclamation in your field of expertise.
Other pathways like the H-1B require you to have at least a U.S. bachelor’s degree in a given specialty or its equivalent related to the position in question.
Some pathways offer the basis for obtaining lawful permanent residency in the U.S. A permanent resident status allows you to reside and work in the U.S. permanently and provides you with a path to acquire U.S. citizenship. Opportunities that come with these perks are known as “immigrant” pathways.
Other pathways, such as nonimmigrant and parole status, only allow you to reside and work in the United States temporarily. Although such pathways cannot extend indefinitely, they allow enough time for you to demonstrate eligibility for permanent residency.
Below is a summary breakdown of the temporary or nonimmigrant pathways for entrepreneurs looking to work in the United States:
Entity requirements: To qualify for this pathway, you must must be working for a start-up enterprise that’s organized and lawfully licensed to operate in the U.S. This entity must have been formed within five years preceding your application. Another condition is that your start-up must have substantial potential for rapid growth and job creation.
In addition, you must have substantial ownership of the start-up entity. According to USCIS, you should have at least 10% ownership of the entity for initial parole and at least 5% for re-parole.
Your activity requirement in the U.S.: You must also have an active and central role in the entity’s operations.
Duration of validity: Up to 30 months of initial parole, with an ability to apply for an additional period of 30 months, known as re-parole.
Entity requirements: This visa classification is most appropriate if the entity is not established. A B-1 allows you to fly into the U.S. to negotiate a contract, secure funding and office space, or attend meetings in relation to setting up a new business in the country.
Your activity requirements in the U.S.: B-1 visitors are prohibited from operating or working for an established U.S. entity. Similarly, a B-1 visitor cannot operate or work for a new entity in the U.S. (one they have not set up themselves).
Duration of validity: Up to six months and a minimum of one month for the initial stay. However, you can extend your visa status for up to six months, making the maximum duration for a B-1 visa one year.
Entity requirements: The eligibility requirement for an E-2 is that you must invest a substantial amount of capital and hold at least 50% of ownership or possession of operational control of the entity in question.
The investment enterprise should not be marginal. A marginal enterprise is one without the present or future capacity to generate more than enough income to cater to a minimal living for you and your family within five years.
Your activity requirements in the U.S.: With an E-2, your activity in the United States must entail developing and directing the investment enterprise.
Duration of validity: Up to two years for the initial approval, with two-year extensions without an annual numerical limit and no cap on the maximum duration of status.
Entity requirements: This pathway is specifically reserved for students in F-1 student status who want to start businesses in the United States. However, for the start-up to qualify for a STEM OPT extension, it must:
Your activity requirements in the U.S.: Students applying for this noncitizen entrepreneur pathway are limited to only performing work that’s directly related to their major study area.
Duration of validity: Up to 12 months plus a two-year STEM OPT extension (a maximum of 36 months) for OPT. Post-completion OPT will be less the pre-completion OPT received.
Entity Requirements: The entity or enterprise requirement for a H-1B is an ownership internet in the petitioning entity. However, the entity is required to file the petition as your employer.
Your activity requirements in the U.S.: Your position in the entity must require the following:
Duration of validity: A three-year initial approval followed by extensions for up to three additional years. Extensions beyond the six-year cap may be available for individuals in the process of obtaining lawful permanent resident status.
H-1B is subject to an annual statutory cap that limits the number of petitions filed for an initial H-1B period. H-1B extension petitions are exempt from this cap.
Entity Requirements: The receiving U.S. entity must have a qualifying (per the eligibility requirements set by the relevant authorities)with your foreign employer.
The new office is required to secure sufficient physical premises at the time of filling and be operational in the U.S. for a duration of one year.
Your activity requirements in the U.S.: The new office must support your executive or managerial position for one year.
Duration of validity: One-year initial approval for a new office followed by two-year extensions up to a total of seven years.
Entity requirement: Your U.S. agent or employer must file the petition on your behalf. Although you cannot self-petition, your separate legal entity may also be eligible to file a petition on your behalf.
Your activity requirement in the U.S.: You must work in your area of extraordinary ability.
Duration of validity: Up to three-year initial approval followed by one-year extensions with no maximum duration of status and no annual numerical limit.
Lawful permanent residents are allowed to work in the U.S. without restrictions. Before obtaining lawful permanent resident status, you may be eligible to apply for employment authorization if you apply to adjust your status to lawful permanent resident.
Below is a summary of available immigrant pathways for entrepreneurs willing to work in the United States:
Entity requirements: No labor certification, job offer, or employer requirements.
Your activity requirements in the U.S.: You must show sustained national and international acclaim and achievements that have been recognized in your field of specialty.
You must also intend to continue working in your select field and show that you will substantially benefit the United States in the future.
Employment-Based Second Preference – Exceptional ability or advanced degree professional with national interest waiver of the job offer and the labor certification
Entity requirements: no labor certification, job offer, or employer requirements IF a national interest waiver is granted.
Requirements for a national interest waiver: You stand to receive a grant of national interest waiver if you establish that:
You are also required to establish exceptional ability (a level of expertise significantly above that ordinarily encountered) or that you are an advanced degree professional (the job must require, and you must posses, a degree above a bachelor’s, or a bachelor’s followed by at least five years of progressive experience).
Entity requirements: To qualify for an EB-5, you must invest a set amount of lawfully obtained capital in a new commercial enterprise that will create at least 10 jobs for qualifying employees.
The set amount of investment capital is $1.05 million generally, or $800,000 if you intend to invest in an infrastructure project or a Targeted Employment Area. These amounts automatically adjust on January 1, 2027.
Your activity requirements in the U.S.: You must be engaged in the new commercial enterprise through policy formulation or the exercise of day-to-day managerial responsibilities.
U.S Citizenship and Immigration Service (USCIS) http://) https://www.uscis.gov/working-in-the-united-states/options-for-noncitizen-entrepreneurs-to-work-in-the-united-states