Immigration Through Investment

To many, the ultimate dream of success is becoming the owner of your own business. The master of your own fate. But, for those who are seeking U.S. immigration status based on employment, that can be a difficult route. Investment may take many forms, but the most straightforward test is legal or actual control. This requires advanced planning, since the very control that may be required to establish a non-immigrant visa, could actually bar later obtaining a green card. Typically a company must "prove" (Labor Certification) that it needs an employee's skills, and that these skills cannot be found in the U.S. workplace. The problem here is that the law prohibits the beneficiary from being the petitioner on the assumption that no owner will "fire" him or herself in favor of an equally qualified U.S. worker. What can one do?

The U.S. Congress bitterly opposed creating any kind of "investor" immigrant visa, arguing that to allow "rich" people to simply "buy" their way into the U.S. would be the same as selling the country, and the opinion most often voiced was, "The U.S. is not for sale!" This opposition to some form of immigrant investor visa which is common in other countries cost the U.S. valuable and substantial "investment" dollars that would benefit all levels of the economy, and also risked passing up admitting the "best and the brightest" inventors and entrepreneurs. Those who invent new products or direct and develop the best new systems frequently are owners or at least majority shareholders of the company, and there ought to be a way to encourage and facilitate their entry into the U.S.

The compromise is the EB-5 "Investor" visa Category, which is officially called the "Jobs Creation Act." It requires the investor to prove that (10) new jobs have been created over a 2 year period. While it does have some advantages, I believe these are generally outweighed by the strict interpretation of requirements by Citizenship and Immigration Services, (CIS and Legacy INS) that reflect an ongoing distaste for and opposition to this visa. Another disadvantage is the overall time required before a green card will be issued (approximately 7 years!) making this a less inviting route. The majority of people who have accumulated the money required, generally have skills or a business that will provide a faster and more secure route to a green card.

Any discussion of U.S. immigration must always distinguish between immigrant and non-immigrant. Most people initially enter the U.S. as non-immigrants. The first choice for an investor would be the E-1/2 Treaty Trader / Investor visa, but sadly this is foreclosed from the two largest and most obvious potential "investor" countries: India and China! "E" visas are based on individual treaties, and require at least 50% ownership by citizens / nationals of the treaty countries. These visas are among the most powerful for non-immigrant business entry, but there are currently no proposals to add either country to the treaty list. What is available and most frequently used by our Indian clients is the L-1, Intra-company Transferee visa, which requires a viable company in the foreign country that either controls or is controlled by a U.S. entity. Although long dis-allowed, the government now finally accepts 50 - 50 ownership under the traditional concept of "negative" control.

The L-1 visa allows for the transfer of Executives, "Key" Managers, and Specialty (Specialized Knowledge) Workers. Each is a distinct category, and it is best practice to choose only one. Merely assigning a title is not sufficient to qualify, and CIS closely examines the actual job duties listed to see if they support the title. For example, the CEO of a one or two person company will generally not be allowed, as the "executive" function presupposes that you are directing an organization, not doing the work yourself. (So, Steve Jobs would not have qualified for this visa!) "Key" Managers must manage: managers (no direct customer / client contact); professionals (degreed only); or most recently a "critical function" of the business. This last definition was to accommodate large international accounting and management companies to include individuals who "manage a critical function" such as a large investment portfolio (vs. people.) Specialized Knowledge Workers should be people with "closely held" or specialized knowledge of a particular function or a process that is critical (preferably unique) to the company. This would include the developer of a source code, but exclude your top volume widget assemblers.

The EB-1C Category does provide green cards to multinational executives and key managers who have held that position for at least one year overseas, and who will continue in the same or similar role for the U.S. entity. CIS also seeks to narrowly circumscribe who may qualify as an EB-1C, but it is a far less subjective determination, and there are fewer "grey" areas. The application process is significantly (2 to 4 years) faster, and it is not limited to a single individual if the size of the business supports more people. It is also possible for "key" individuals to seek green cards as company employees, but this requires them to give up (or defer) actual ownership of the enterprise until after the conclusion of the green card process. The irony is that the substantial processing delays in the "Investor" visa, may make this a more expeditious route to permanent residence.

One final comment relates to business owners who wish to bring over close friends and family members as trusted employees. The single most overlooked option here is the position of manager or other professional for each shift of a successful enterprise. This is particularly true for many franchise operations. In spite of their traditional opposition to approving these petitions, CIS has (reluctantly) accepted the need for at least one qualified manager for each shift of operation, which can be in addition to the actual owner. Often the individual you are seeking to bring in will have a sufficient combination of education and directed work experience to qualify for an H-1B. This strategy will be discussed in detail in the near future.