The E-2 nonimmigrant classification allows a national of a treaty country admission into the United States. The key components of the E-2 are:
- Ownership: the US company must be 51+% owned by a national of a treaty country. The US company can also be owned (51+%) by a company that is housed in a treaty country.
- Nationality: prospective E-2 applicant must be a national of that same treaty country.
- Substantial investment at risk: no set minimum investment figure but an investment of at least $50,000 is common.
- Marginal investment: investment must be for a greater purpose than to just obtain visa status for the E-2 applicant.
- Direct/Develop/Essential to the enterprise: the employee that is seeking the E-2 visa must be directing the US company or essential to the US Company. This is a case-by-case analysis.
Musillo Unkenholt also uses the L-1A visa option for certain multinational executives and managers in the start-up space.
Multinational entities are those entities that have both an overseas and an American presence and have common ownership. Common ownership is generally defined as when an entity or a family of entities owning a majority of both the American and overseas companies.
L-1A Multinational Managers or Executives must manage professional employees or produce at an executive level for one year abroad prior to filing their L-1A Visa application.
GREEN CARD OPTIONS:EB-1 Visa
The EB-1 Multinational Managers or Executives Green card is often paired with the L-1A nonimmigrant visa. This path allows very quick processing times and reliability. Most applicants who qualify for the L-1A will also qualify for the EB-1. The legal standards are similar.
Under this program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:
- Commercial Enterprise. The necessary investment in a commercial enterprise in the United States. A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business. Personal residences do not qualify as commercial enterprises.
- Necessary Investment. $1 Million, unless in a Targeted Employment Area (TEA). A commercial enterprise in a TEA requires a $500,000 investment.
- 10 US Jobs. Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.
- Source of Capital. The US government requires extensive evidence about the source of the applicant’s funds. The EB-5 applicant must prove that the assets were not acquired by unlawful means (such as criminal activities).
- Type of Capital. Capital can be any cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the EB-5 applicant. The assets of the commercial enterprise cannot be used to secure any of the indebtedness.
Many EB-5 applicants use Regional Centers. Regional Centers allow bundling of multiple investments and a passive approach to your EB-5.
A direct EB-5 investment allows for an active role in the management of the investment.