USCIS is completing its H-1B lottery selections giving selected applicants 90 days to file their H-1B cap subject petitions for Fiscal Year 2021. Unselected registrations may be selected at a later date if USCIS determines there is a need for more filings to meet the statutory cap. However, due to the low odds of further selection in the lottery, those who have not yet been selected and who may want to stay should consider alternative immigration options to maintain their status in the U.S. This blog post will focus on the investor options for entrepreneurs.
E-2 investor status is a good choice for foreign nationals who can make a substantial investment into a U.S. business they own and operate. Many use the amount of $100,000 as a yardstick but there is no actual amount required, it merely has to be substantial for the type of business selected. For example, a business providing critical services in the present era may receive favorable consideration with an even smaller amount. E-2 status is only available for investors from certain treaty countries and the U.S. business must be at least 50% owned by the applicant or those with the same nationality. A viable case will include an office location, proof of money spent to start or purchase the business, preferably U.S. worker employees on payroll, and a detailed business plan with forecasted financial statements. USCIS expects an operating business that stimulates the economy and creates jobs, so a passive investment in land or even a building will not qualify.
One nice aspect of the E-2 visa is the spouse can obtain an unrestricted work permit.
Those who need more time to prepare an E-2 application or to find a business to purchase may consider B-1 visitor status as a prospective investor. B-1 status does not provide work authorization, but it does allow business set-up, including contract negotiation, business meetings, and other necessary tasks. Foreign nationals can request up to 6 months of B-1 status if they can demonstrate their planned activities as a prospective investor.
If you would like to discuss whether your business idea could qualify for E-2 status, please contact your WR attorney.