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The first question to consider, from an immigration perspective, is who will staff the U.S. office. If the plan is to hire U.S. workers exclusively, then there are few immigration concerns. Although any U.S. employer will be required to complete an I-9 form for all workers to verify eligibility to accept employment, the employment lawyer advising the company on other aspects of the legal requirements for employing workers in the U.S. should be able to provide the employer with adequate guidance (we can as well, of course). However, most non-U.S. companies setting up a first U.S. office will want to transfer an experienced executive already employed with the company to oversee the startup of U.S. operations. If this will be the case, an attorney experienced in handling U.S. immigration matters should be consulted very early in the planning process to determine the appropriate visa types and the requirements for the U.S. operation to be able to qualify as a sponsoring entity. The long range plans of the business – and the ability of the company to meet projected goals – will probably depend on the ability not only to bring foreign national workers to the U.S. as employees, but but also on the ability to keep them in the U.S. and working for the new entity. Immigration considerations should be in the forefront when creating a business plan.
The most common visa types for new U.S. offices of overseas entities include the L-1 Intracompany Transferee visas and the E-1/E-2 Treaty Trader/Treaty Investor visas. To a lesser extent, H-1B and O-1 visas are also utilized in these situations. Depending upon the type of business and the type of employment anticipated for a specific foreign national, other visa types may be available (P visas where performing arts or athletics are implicated, Q for cultural exchange, I for journalism, etc.).
There are several factors which make the process of obtaining a non-immigrant visa slightly more difficult, or at least more involved, where new businesses or new U.S. offices are concerned. The relevant factors depend to an extent on the visa type sought, but the following issues tend to be especially important. When applying for the initial visa, the ability of the company to support its expenses as well as the salaries offered to all employees will be a focus of the agency adjudicating the visa application – even more so than a typical application for an established U.S. company. In some cases, the source of the funds/capitalization in possession of the new U.S. entity must be clearly evidenced. An adjudicator may also require evidence of steps to establish a real and substantial business, including leases and purchase agreements for business premises and equipment (with pictures), already-secured agreements with and orders from clients, legal business formation, etc. It isn’t unusual for a shorter period of visa validity to be granted when a new entity is involved than what is normal for an established entity. This gives the business a relatively short time to establish and prove itself as financially viable. When applying for extensions for founding foreign national personnel after the shorter initial visa period, the adjudicating agency will want to see proof of profitability and even growth. In situations such as the L-1A Intracompany Executive or Manager, USCIS will often want to see that the foreign national is now managing more than corporate functions, and often more even that subordinate personnel – they will want evidence that the L-1A is now managing middle-level managers, who in turn are managing other employees. For E-1 Treaty Traders and E-2 Treaty Investors, the adjudicator will often wish to see evidence that the enterprise provides more income than just that necessary to meet the salary of the beneficiary and the needs of the business; the enterprise must be more than just “marginal.”