Visas for Start-Ups

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