At the Sutardja Center for Entrepreneurship & Technology, we welcome many international students to our programs. But what happens after graduation? Our thanks to SCET mentor Nadia Yakoob for contributing the article below to help students understand options for staying in the U.S. after graduation to build a startup, work, or study. Also, please read her other articles in the series to understand how Optional Practical Training (OPT) works, what the requirements for the H-1B Visa are, and how to obtain an O-1 Visa.
If you’re an international student in the U.S. who has worked for an international company abroad (or will work for such a company after finishing your studies), the L-1 Visa for intra-company transferees may be of interest to you as a way to return to the U.S. to work. The E-2 Investor Visa is another possibility if you want to work for an international company in the U.S. Both of these visas also are great options if you have an entrepreneurial spirit and want to expand a foreign company’s operations to the U.S. or launch a business in the U.S. I will discuss the specifics of each of these visas below.
The L-1 Visa for Intra-company transferees.
Background: The L-1 Visa is a visa designed to facilitate international trade – specifically, the movement of people, like the movement of goods, services, and capital. It originally was created to simplify the movement of executives, managers, and workers with “specialized knowledge” of international companies, or knowledge that would be difficult for a local U.S. hire to acquire without significant training.
Qualifying as an International Company: Immigration regulations require that a company have a legally related entity in two or more countries in order for a company to be considered international. This means a company could qualify if it had one company in country X and a legally related entity in the U.S., such as a parent, subsidiary, branch or affiliate. Many of my clients that are international companies actually operate in only two countries, like the U.S. and China for example.
International Transfers of Executives, Managers and “Specialized Knowledge” Workers: Once a U.S. company is legally related to a company abroad (that is a real and operating enterprise with employees and revenues), the U.S. company can sponsor an overseas employee of the foreign company to work in the U.S. as an executive, manager, or “specialized knowledge” worker. The L-1 Visa has two subcategories: the L-1A Visa and the L-1B Visa. Executives and managers come on the L-1A Visa and “specialized knowledge” workers come on the L-1B Visa.
In order for the overseas employee to qualify for the L-1A or L-1B Visa, the employee must meet certain criteria: 1) s/he must have worked overseas for at least one year in the preceding three years before seeking entry as an L-1 employee; and 2) s/he must be coming to work in a managerial, executive or “specialized knowledge” capacity.
For criteria number 1, people often ask me if they have to be working physically at the overseas entity for one year in order to qualify. The answer is yes. In fact, you must show 365 days of employment with the overseas company in the three years before seeking L-1 classification. The follow-up question typically is how does one prove s/he worked overseas? Usually, you should provide a letter from the foreign company’s HR manager, payroll records, your tax returns, and a complete copy of your passport (showing all your travel stamps).
For criteria number 2, an organizational chart of the U.S. company with the L-1A position is key to showing an employee’s managerial or executive capacity along with a description of the professional and educational background of the people they will supervise in the U.S. Showing “specialized knowledge” requires a detailed explanation of the product(s), procedures, protocols or company policy that are unique or proprietary and of which you have specialized knowledge that would be difficult for a local U.S. hire to acquire without significant training.
How Long Can I Stay? A person can hold L-1A status for up to seven years and L-1B status for up to five years. A great bonus is that dependent spouses of L-1A and L-1B Visa holders are entitled to work authorization. Individuals on the L-1A also have the option to be sponsored for permanent residence as an “international manager or executive.”
“New Office” L-1s for Companies Abroad Seeking to Expand to the U.S.: As I mentioned earlier, you may have worked for or started a company in your home country that wants to expand its presence in the United States. This is possible under the L-1 Visa category, but beware that such “New Office” L-1 petitions are heavily scrutinized due to widespread fraud in the past. You will need to show a viable business plan for the U.S. operations, transfer of funds to the new entity in the U.S., an office space, and local hires. You also need to show that the foreign company will continue to operate abroad and, if you held a very senior role in the overseas entity (like Founder or CEO), you should explain who will manage operations during your absence. New office L-1s are only granted an initial stay of one year, after which you need to apply for an extension and show your business is growing (more clients, more business, more hires, etc.).
The E-2 Investor Visa
Background: The E-2 Visa is another visa designed to facilitate trade, but it is based on treaties between the U.S. and another country. Not all countries have a treaty with the U.S. So, the first thing to do is check whether your country of citizenship has a treaty with the U.S. here. This list is not intuitive. Countries like China and India do NOT have treaties with the United States, but Iran and Pakistan do (!).
How Does it Work? Assuming your country of citizenship has a treaty with the United States, then you could work for a company in the U.S. that is at least 50% owned by either individuals or an entity of your country of citizenship. For example, you are a Japanese national who just finished your MBA at UC Berkeley. Japan has a treaty with the U.S. (In fact, the Japanese are the biggest users of the E-2 Visa). You return to Japan to work at a Japanese company, which either has or wants to open a subsidiary in the U.S. that is wholly owned by the parent company in Japan. It then could transfer you to the U.S. to work as an executive, manager or someone with specialized skills. Unlike the L-1 Visa, you do not need to show one year of employment with the parent company in Japan before qualifying for a transfer.
As another example, you return home to Japan with your MBA degree and have a great idea about a business you want to start in the U.S. You shop your idea around, raise some venture capital in Japan, and decide to launch the company in the U.S. with the Japanese investment capital. The E-2 Visa could be a really good fit for you.
How Much Investment is Required? There is no clear answer to how much investment is required other than it should be “substantial” and proportional to the type of business you are starting. A small sushi bar in Oakland is going to require a different amount of capital to get started than the purchase of a manufacturing plant in Michigan (both of which have been done on the E-2 Visa). That said, the investment amount can’t be just enough for you to live and work in the U.S. The investment capital has to be used for a “real and operating enterprise,” which you would evidence through a business plan, transfer of funds to the new entity in the U.S., purchase of equipment, an office space, and local hires.
But, what if the investment capital is raised in the U.S.? This may work if some of the investment capital comes from the U.S. like a joint venture. As a practical matter, I do not see U.S. investors typically putting substantial investment capital in a foreign-owned start-up. Remember, even though your startup will be based physically in the U.S., it needs to be at least 50% owned by nationals or an entity of a treaty country. More importantly, it really is not compatible with the purpose of the E-2 Visa, which is to facilitate the movement of foreign capital into the U.S. to generate jobs and spending in the U.S. So, while fundraising in the U.S. and the treaty country would work for a joint venture of sorts, relying exclusively on funds raised in the U.S. to launch a business that would get you an E-2 Visa to oversee and manage that investment would be very difficult.
How Long Can I Stay? A person can hold E-2 status indefinitely, but it is granted in two-year increments. Dependent spouses are entitled to work authorization. The E-2 does not provide a pathway to permanent residence. In fact, you should be ready to show that you maintain sufficient ties to your home country that would compel your return at some point in the future (like family or some financial assets).
Interested? Please feel free to contact me at firstname.lastname@example.org so we can discuss your eligibility for either visa.