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Immigration Law

Expert: 'No Easy Transition' from Investor Visa to Green Card - Forbes

Stuart Anderson, Forbes, Dec. 3, 2017 - "What legal options are available for foreign-born entrepreneurs in America? ... The Ewing Marion Kauffman Foundation found that “Immigrants are almost twice as likely as the native-born to become entrepreneurs.” A 2016 study from the National Foundation for American Policy concluded, “Immigrants have started more than half (44 of 87) of America’s startup companies valued at $1 billion or more.” The study cited such well-known companies as SpaceX, Uber and Stripe that had at least one immigrant founder. ... “There is no easy transition from an E visa to a green card,” explained Cornell Law School Professor Stephen Yale-Loehr in an interview. “The nature of an E-2 investor is that they are running or managing their investment in the U.S. That usually means that they own the U.S. company they are managing. But that is inconsistent with the Labor Department’s labor certification regulations [part of the permanent residence process for most employment-based green cards], which assume that there won’t be a true test of the labor market if the beneficiary owns more than 5% of the company that sponsors the worker for the green card.” If an entrepreneur can qualify for an O-1 “extraordinary ability” temporary visa it could make it easier for an individual to “self-petition” for the 1st preference of an employment-based green card and avoid the need for labor certification. But as attorneys will tell you, it is challenging to gain approval for an O-1 visa. Another category that provides permanent residence is the employment-based 5th preference, also known as EB-5. But EB-5 usually requires an individual to invest $500,000 or more and create at least 10 jobs for U.S. workers within two years. “As a practical matter, EB-5 is not a viable green card option for most E-2 investors,” notes Professor Yale-Loehr. “Many E-2 investments don’t require that much investment and/or don’t create that many jobs (particularly so quickly).” A lengthy article in Bender’s Immigration Bulletin lists more legal possibilities for foreign nationals to start a business in the U.S., with ironically one of the best being as a spouse of a temporary visa holder. The spouses of an L-1 visa holder (intracompany transferee) or certain H-1B visa holders can receive employment authorization that permits them to work practically anywhere in the United States, including as the founder of a company."