If you are thinking of opening a new company in the US as a non-US resident or citizen, you may feel overwhelmed with the options available. A brief summary of L-1 intracompany transferee and E-1/E-2 treaty trader and investors options is below.
L-1 – Intracompany Transferee
The L-1 visa classification is available for temporary intracompany transferees who work in managerial or executive positions (L-1A) or have specialized knowledge (L-1B). In order to qualify, the employee being transferred must have at least one year of managerial, executive, or specialized knowledge experience in the last three year with a company abroad that is related to the U.S. company. The employee must be coming to the U.S. to work for the petitioning company in a managerial, executive, or specialized knowledge role.
The L-1A classification also allows foreign employers seeking to send a managerial or executive employee to establish a new office if no qualifying organization already exists in the U.S. To qualify as a new office L-1, petitioners must show:
• They have a physical location for the new U.S. office;
• The employee has been employed as an executive or manager for one continuous year in the three years before filing the petition; and
• The new office will support an executive or managerial position within one year of the approval of the petition.
Canadian citizens are able to present their L-1A new office petition directly at a border Port of Entry. Non-Canadian citizens must file their petition with USCIS.
An approved L-1A new office petition will be valid for one year. After that year another petition must be filed to extend the employee's L-1A status. The extension must show the new office has grown enough to continue to support a managerial position and that both the US and Canadian companies are continuing to do business.
L-1A status can be maintained for a total of 7 years. Exceptions may apply for Canadians that continue to reside in Canada the majority of their time in L-1A. Those who qualify for L-1A multinational manager or executive may also qualify for the EB-1C multinational manager green card path.
E-1 Treaty Trader
The E-1 nonimmigrant classification allows a national of a country with which the U.S. maintains a treaty of commerce and navigation (or qualifying international agreement or which has been deemed a qualifying country by legislation) to be admitted to the U.S. solely to engage in international trade of goods, services, international banking, insurance, transportation, tourism, technology and its transfer, and some news-gathering activities.
You must apply for the E-1 visa at a US Consulate in your country of citizenship. Each Consulate has its own individual guidance as to how to apply. Applicants already in the U.S. in lawful status can also file a petition with USCIS to change their status to E-1.
Evidence must include proof of citizenship and documentation of ongoing, substantial trade between the treaty country and the U.S. Substantial trade can be defined as a continuous flow of goods or services between the U.S. and the treaty country. The value of the goods or services need not be high in value. Rather, the volume of the trade is more critical to showing that the trade is substantial.
An E-1 visa will be granted for a maximum of 5 years at a time. The visa holder will be granted a 2-year period on their I-94 upon entry to the U.S. E-1 status can be held indefinitely as long as the treaty trader continues to qualify.
E-2 Treaty Investor
The E-2 nonimmigrant classification allows a national of a country with which the U.S. maintains a treaty of commerce and navigation (or qualifying international agreement or which has been deemed a qualifying country by legislation) to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. The treaty investor must be seeking to enter the U.S. to develop and direct the investment enterprise.
Evidence must include proof of citizenship, documentation of a substantial investment made or being into the U.S., and documentation showing the enterprise is at least 50% owned by a national of the treaty country. A substantial investment is one that:
• Is proportionate to the total cost of either purchasing an established enterprise or establishing a new one. The lower the cost of establishing or purchasing the enterprise, the larger the investment must be. Alternatively, higher cost enterprises can still qualify for E-2 treaty investors with a smaller investment.
• Is not marginal and is sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise.
You must apply for the E-2 visa at a US Consulate in your country of citizenship. Each Consulate has its own individual guidance as to how to apply. Applicants already in the U.S. in lawful status can also file a petition with USCIS to change their status to E-2.
An E-2 visa will be granted for a maximum of 5 years at a time. The visa holder will be granted a 2-year period on their I-94 upon entry to the U.S. E-2 status can be held indefinitely as long as the treaty trader continues to qualify.
Contact the Law Offices of James D. Eiss today to set up a consult to discuss the options available to you and what path may be the best for your new company.
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