Five US immigration obstacles faced by tech-based and startup companies

Attracted to Silicon Valley, New York's Silicon Alley and Los Angeles' Silicon Beach, many tech-based companies and especially startups identify expanding to the US as the next logical, and often necessary, step in the growth of their businesses.

This can be an exciting, yet demanding, undertaking. One challenge often overlooked until late into the process, especially by newer companies, is the US visa and immigration aspect. It is critical to understand that a foreign business owner or employee will need the appropriate visa in place prior to traveling to the US to be able to work. This is true not only for those who will stay in the US for the long-term, but also for those who will be present only for the startup phase of the expansion.

While the UK enjoys the benefit of participating in the US Visa Waiver Program (ESTA), entering the US under this scheme (ie, without a visa) allows the eligible traveler to engage only in very limited business activities, such as participating in business meetings and negotiating contracts, and does not permit the traveler to engage in productive work. Once the traveler's business activities exceed those allowed under the Visa Waiver Program, he or she will require the appropriate US work visa. As such, it is not advisable to use ESTA to effectuate a US business expansion beyond the initial preparatory stages.

There are a number of visa categories that may be available for owners, executives, managers and other workers who wish to work in the US as part of a business expansion. The categories have strict requirements that must be met in order for an application to be successful. The following are five of the most common obstacles that companies and visa applicants face when applying for work visas in the context of a US business expansion:

1. Ownership structure: Some visa categories (such as E and L visas) require that the ownership of the US company be structured in a certain way so that it is at least fifty percent owned by nationals of a country with which the US maintains a treaty of commerce and navigation (and requiring that the visa applicant share the same nationality) or has a corporate relationship with the employee's previous foreign employer. It is important to know early on in the expansion process whether such requirements will apply, to avoid incurring any unnecessary costs in restructuring the ownership of a company.

2. Office space: To sponsor an employee for a work visa, the US employer will generally need to demonstrate that it is an actual business. The two most popular visa categories (E and L visas) utilized as part of a US business expansion both generally require that US office space be secured before the visa applications are made. Tech-based and startup businesses will be required to secure office space even if the specific type of business generally would not require physical premises. There are specific requirements as to the type and size of physical premises required. For instance, a "virtual office" or working from home will usually not be sufficient. The US immigration authorities may request photographs of the office space to ensure the requirements have been met.

3. Business plan: Both the E and L visa categories also usually require the preparation of a detailed business plan supporting the US expansion. As with office space, the business plan must meet a number of specific requirements for each visa category. An appropriate business plan for US immigration purposes may be different than one required by a bank for a loan application.

4. Job duties and descriptions: Visa applications for executives, managers and specialized knowledge workers must include detailed and appropriate job descriptions. There are specific requirements as to what kinds of positions qualify in these three categories. Because the US immigration authorities analyze a position's duties and do not merely rely on a job's title, it is important that job descriptions illustrate how the position meets the requirements of the relevant category.

5. Short-term solutions: Some visa categories require that a certain amount of groundwork is completed toward expansion before an applicant can apply for a visa. Sometimes, that groundwork can be completed while in the US on ESTA. However, in some situations, a foreign national might need a work visa in order to lawfully lay the required groundwork (since the applicant's planned activities in the US would go beyond the limited activities allowed under the Visa Waiver Program). This "Catch 22" scenario can often be resolved for some employers seeking to expand into the US by applying for an intermediate, shorter-term visa, such as the B-1 in lieu of H-1B visa, or the O-1 visa for those who are extraordinary in their respective fields.

For many tech-based companies and startups, the US visa process can be a daunting and unwelcome challenge. The key, however, is to consult immigration lawyers as early in the process as possible to avoid any expansion roadblocks or delays.

Karnig Dukmajian, Laura Devine Solicitors

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