The USCIS and Consuls have become more restrictive in issuing visas for new company’s founders and employees.
Substantial documentation, detailed job descriptions, and data are needed to prove the firm is viable and sustainable. The founder’s track record of success can be a key factor. With each visa application I carefully explain the company’s technology, services, products and the role the visa applicant will play in the firm’s expansion.
USCIS is making H-1B and other visa applications much more challenging with a January 8, 2010 policy memo finding company owners have no employer-employee relationship with a visa sponsoring company. There are, in certain circumstances, ways to show such a relationship exists, even for start-ups.
American Consuls are also more restrictive with E-2 (treaty investor) visas for start-ups. They want to see the source of capital, detailed business plans, and see the capital invested in the new enterprise is “at risk,” and not just in the company’s bank account.
I just succeeded in assisting a new start-up from Ireland with an E-2 visa for the start-up’s founder. As with many cases in the past, I proved that intellectual property was an asset of the company which, in addition to cash investment, met the “substantial investment” requirement for an E-2 visa.
The attitude of the USCIS toward start-ups is disappointing. Small companies are the ones that create the employment the country needs in times of recession. Some companies created by H-1B visa holders have become large multinational firms. If the USCIS is concerned about a firm’s viability, all they need to do is issue a visa petition for one year, and require a progress report when an extension application is submitted. Stifling start-ups will stifle inspiration and give competitive advantage to overseas competitors.
I am a strong believer in the power of start-ups and the role they play in all fields. I am not dissuaded by the government’s anti-small business attitude.
I am pleased to discuss visas for start-ups with you.
Martin Lawler
Tuesday, March 23, 2010
Friday, March 19, 2010
EB-1 Case Opinion
Here is an interesting opinion on an EB-1 case. I will discuss it more later:
http://www.aila.org/content/default.aspx?docid=31441
http://www.aila.org/content/default.aspx?docid=31441
Wednesday, March 10, 2010
EB-5 Investor Green Cards – Regional Center or Individual Investment
EB-5 investor green card applicants often ask me whether they should make an investment in a Regional Center or in a business they create. Both have advantages depending on the individual. Here are some general factors to consider:
• 70% to 90% of EB-5 investor choose Regional Centers but they are not for everyone.
• Regional Centers may count indirect employment toward the 10 jobs each investor must create. One’s own business must create the jobs as direct hires.
• The investment amount is $1 million unless the enterprise is in a high unemployment or rural area. High unemployment is defined as 150% above the national average. Most Regional Centers are located in a high unemployment or rural areas and thus the amount of investment is $500,000 not $1 million; to create a new company with $500,000 it must be in a rural or high unemployment area and with today’s high national unemployment rate this can be a challenge.
• Regional Centers are run by developers and one does not have to operate the enterprise. One may go to school, enjoy retirement, or own another business. The same is true for a self-owned business; it may be run by another manager, although the investor may choose to manage its day-to-day operations. Some prefer to manage their own company and investment, and are not interested in relinquishing control to another.
• Returns on Regional Center investments are usually low. Creating one’s own business may generate a much higher return.
• As soon as the case can be documented and the investment made in a Regional Center, the first step of the EB-5 process (Form I-526) can be filed. Usually the same is true if one purchases a business. However, for one creating a new firm from the beginning, the funds must be substantially spent and not just sitting in the company’s bank account – for the funds to be “at risk,” and the I-526 filed. Thus, investing in a Regional Center can be a faster visa process than creating a new business.
• Often there is no temporary visa until the owner/investor immigrates allowing an investor to run a new enterprise. This can complicate the process of opening a new business unless one has a trusted manager to run the new enterprise until the EB-5 green card is issued.
• The USCIS has approved hundreds of EB-5 cases for two of the Regional Centers and more than 70 for two others. Other Regional centers have had some petitions approved indicating the USCIS accepts the Regional Center’s business concept. People creating a new business must provide the USCIS substantial documentation about the enterprise to prove it is a viable business, the funds are at risk, and the jobs will be created.
• Individuals may be more comfortable in investing with relatives or business acquaintances or in a business they form than with a Regional Center developer they do not know.
These are just some of the factors to consider. I am pleased to talk with investors about the process and advantages of both Regional Centers and individually created businesses. I help people file both types of EB-5 cases.
Martin J. Lawler
• 70% to 90% of EB-5 investor choose Regional Centers but they are not for everyone.
• Regional Centers may count indirect employment toward the 10 jobs each investor must create. One’s own business must create the jobs as direct hires.
• The investment amount is $1 million unless the enterprise is in a high unemployment or rural area. High unemployment is defined as 150% above the national average. Most Regional Centers are located in a high unemployment or rural areas and thus the amount of investment is $500,000 not $1 million; to create a new company with $500,000 it must be in a rural or high unemployment area and with today’s high national unemployment rate this can be a challenge.
• Regional Centers are run by developers and one does not have to operate the enterprise. One may go to school, enjoy retirement, or own another business. The same is true for a self-owned business; it may be run by another manager, although the investor may choose to manage its day-to-day operations. Some prefer to manage their own company and investment, and are not interested in relinquishing control to another.
• Returns on Regional Center investments are usually low. Creating one’s own business may generate a much higher return.
• As soon as the case can be documented and the investment made in a Regional Center, the first step of the EB-5 process (Form I-526) can be filed. Usually the same is true if one purchases a business. However, for one creating a new firm from the beginning, the funds must be substantially spent and not just sitting in the company’s bank account – for the funds to be “at risk,” and the I-526 filed. Thus, investing in a Regional Center can be a faster visa process than creating a new business.
• Often there is no temporary visa until the owner/investor immigrates allowing an investor to run a new enterprise. This can complicate the process of opening a new business unless one has a trusted manager to run the new enterprise until the EB-5 green card is issued.
• The USCIS has approved hundreds of EB-5 cases for two of the Regional Centers and more than 70 for two others. Other Regional centers have had some petitions approved indicating the USCIS accepts the Regional Center’s business concept. People creating a new business must provide the USCIS substantial documentation about the enterprise to prove it is a viable business, the funds are at risk, and the jobs will be created.
• Individuals may be more comfortable in investing with relatives or business acquaintances or in a business they form than with a Regional Center developer they do not know.
These are just some of the factors to consider. I am pleased to talk with investors about the process and advantages of both Regional Centers and individually created businesses. I help people file both types of EB-5 cases.
Martin J. Lawler
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