17 Feb The Startup vs. the E-2 Visa
As of now, foreign-born entrepreneurs seeking to start a company in the United States are faced with limited or no visa options. Though “improving access to the U.S. for foreign-born entrepreneurs has been talked about for years and has wide bipartisan support,” the discussion of how to do so has been caught up in “bigger fights over how to overhaul the country’s immigration laws.”[1]
immigration visa
Lawmakers have made many attempts to address this deficit in the American immigration system by introducing legislation to create a so-called “Startup Visa.” Bills to this effect have been introduced in the Senate on three separate occasions—in 2010, 2011, and 2013. While the first two “Startup Visa Acts” expired in Committee, the 2013 version passed the Senate. Currently, the House’s version of the Act is awaiting review by the House Subcommittee on Immigration and Border Security (where it was referred on September 24th, 2014).[2]
Without a Startup Visa option, often referred to as an “EB-6,” many entrepreneurs have turned to the E-2 visa to allow them to stay in the country. The E-2 visa allows a national of a treaty country (a country with which the U.S. maintains a Treaty of Commerce and Navigation) to be admitted to the U.S. when investing a “substantial” amount of capital in a U.S. business.[3] However, E-2 petitioners face a variety of limitations that often hinder their ability to launch and run a startup.
President Obama’s recent Executive Action has recast attention on the long-promised “Startup Visa.” In his statement following the Action, the President reiterated his intent to “make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy.” These comments indicate the White House’s support for a “Startup Visa” and give renewed hope that the law may be passed before the 2016 presidential elections.
The big question is: will a Startup Visa category address these obstacles and make it easier for entrepreneurs to stay in the country? A comparison of the existing E-2 visa category and the proposed “EB-6” category may help shed light on this question.
To start, one major drawback of the E-2 visa is that it is a non-immigrant visa. Unlike some other investment visas, the E-2 is not designed for those who wish to secure a Green Card or U.S. Citizenship. The E-2 visa must be renewed every few years (depending on the term granted), and there is a possibility it could be discontinued at any time, or not renewed, especially if the business folds.[4] By contrast, the EB-6 visa would allow entrepreneurs to gain permanent residency in the US after certain conditions have been met.[5]
Because it is a non-immigrant visa, the E-2 visa must be renewed at least every five years (depending on the term granted, which is somewhat subjective), although it does have an unlimited number of renewals (provided that the visa holder continues to satisfy the requirements. Once an EB-6 visa is granted and the conditions are met, the entrepreneur can become a permanent resident and will have no ongoing obligations to demonstrate the investment and job-creation requirements. However, if the conditions are not met, the entrepreneur can apply for a visa renewal if he or she has invested $250,000 in the business and created 3 full-time jobs.[6]
Another difficulty posed by the E-2 visa is the requirement that the petitioner must be a citizen of a Treaty Country with which the US has a current Treaty of Commerce and Navigation. The proposed EB-6 visa has no such requirement. Consequently, a citizen of any country can apply. Thus, for example, a citizen of Belarus, Brazil or Israel could not currently apply for an E-2 visa, but could qualify, in theory, for a Startup Visa.
Another difference, and one that may be preferential to the E-2 category, is that the E-2 visa has no minimum dollar investment requirement nor does it require the creation of a minimum number of jobs. It simply demands that the investor demonstrate that the capital being invested is “substantial,” the definition of which remains in flux.[7] Conversely, the proposed EB-6 visa has a minimum dollar investment of $250,000 and a 3-job-creation minimum attached to it.
Both visa types present clear advantages and limitations. For citizens of non-treaty countries, EB-6 may be the only viable option for an entrepreneur looking to start a business in the U.S. Citizens of treaty countries, however, can weigh the pros and cons of the benefit of permanent residence provided by the EB-6 option, on the one hand, and the strict monetary and job-creation requirements it presents, on the other. Each investor must carefully select the right visa category with the help of a trusted immigration attorney.
Whichever visa option is pursued, the experts at e-Council Inc. know how to write business plans that have the best possible chance of passing USCIS scrutiny. (e-Council Inc. believes that a Business Plan will be required for the EB-6 application, although not specifically contemplated at this stage.)
To find out about professional, well-researched, articulate, expository narrative Visa Business Plans, whether for E-2, EB-5 or any other business-related Visa, as well as a variety of ancillary services, all of which are designed to specifically address USCIS’s concerns, contact e-Council Inc.com at info@ecouncilinc.com.
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[1] http://online.wsj.com/articles/for-foreign-born-entrepreneurs-startup-visas-offer-a-chance-to-finish-1416613000
[2] https://www.congress.gov/bill/113th-congress/house-bill/5378
[3] The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.
[4] http://www.dekirby.net/library/san-francisco-visa-lawyer-challenges-of-the-e-2-treaty-investor-visa.cfm
[5] https://www.govtrack.us/congress/bills/113/s744/text
[6] https://www.govtrack.us/congress/bills/113/s744/text. If the conditions are not met prima facie, an EB-6 petitioner can apply for two 1-year renewals if they’ve made substantial progress in meeting such criteria and such a renewal is economically beneficial to the United States.
[7] http://www.uscis.gov/eir/visa-guide/e-2-treaty-investor/understanding-e-2-requirements