Overview

The discussion and debate around the proposed Immigration Reform bill continues. One of the positive talking points, especially in Silicon Valley, is around the possibility of a startup visa. Titled “Investing in New Venture, Entrepreneurial startups and Technologies,” it provides path(s) for those seeking both temporary (nonimmigrant visa) and permanent (immigrant visa) residence in the United States.

Regardless of the path taken, the foreign national must be a “qualified entrepreneur,” which means a person must:

1. Have a significant ownership in a U.S. business
2. be employed in a senior executive position
3. Submit a business plan to USCIS; and
4. Have a substantial role in the founding or early stage growth and development of the US business entity.

NonImmigrant Visa

For those seeking the nonimmigrant/temporary visa, there is an initial admission period for three years. The nonimmigrant visa can be renewed every three years as long as the business owned by the foreign national:

1. Created at least 3 full-time jobs AND received a $250,000 qualified investment; OR
2. Created at least 3 full-time jobs AND during the 2 year period ending on the date of the extension applied for generated at least $200,000 in annual revenue.

One of the above two requirements may be waived and a renewal for a up to 2 one-year period (instead of 3) may be granted if the foreign national has made substantial progress in his business and that granting a renewal is economically beneficial to the United States.

Immigrant Visa

There are two types of immigrant visas. Both require that the foreign national be a qualified entrepreneur, as defined above, and both require that the foreign national maintain a non-immigrant status in the US for a period of time. This is a welcome move as it may finally open the door for F- 1/ student visa and H-1B temporary visa holders to start their own businesses and get green cards. Beyond that, however, there are many differences.

Under the first kind of immigrant visa, the foreign national must maintain a valid non-immigrant status (F-1, H-1B, etc.) in the US for at least 2 years. To obtain an extension, the foreign national (1) must have a significant ownership in a US business entity that has created at least 5 full-time jobs AND has received $500,000 qualified investment in his business; OR (2) must have a significant ownership in a US business entity that has created at least 5 full-time jobs AND generated at least $750,000 annual revenue during the last 2 year period AND no more than 2 other aliens have received non-immigrant investment visas on the basis of the foreign national’s ownership of such business.

Under the second type of the entrepreneurial immigrant visa, the foreign national must maintain a valid non-immigrant status (F-1, H-1B, etc.) in the US for at least 3 (not 2) years prior to filing for such status AND hold an advanced science, technology, engineering, or mathematics degree. To obtain an extension, the foreign national must have a significant ownership interest in a US business that created at least 4 full-time jobs AND received qualified investment of at least $500,000. Alternatively, an extension can be obtained if the foreign national’s business created at least 3 full time jobs AND during the 2-year period generated at least $500,000.

These provisions, if passed, will generate more options for foreigners to contribute to the American economy while realizing their own version of the American dream. Although this is ideal for many people who want legal permanent residence through this route, the provisions are complex and will require a combination of knowledge in immigration, corporate, and securities law. Contact our office if you would like to discuss these provisions or if you want to discuss any of the current entrepreneurial options in effect today.