According to data published by the U.S. Census Bureau, more than 5 million new business applications were filed in the U.S. in 2023. European companies are among those that continue to look to the U.S. for business opportunities, with many applications originating in Germany, France, the United Kingdom, and Italy.
Naturally, the global expansion of entities in Europe and beyond has prompted a demand in the need to transfer non-U.S. workers to perform professional, managerial, and other roles in the U.S. market, as companies are unable to secure talent locally. Further, the transfer of foreign talent is often prompted by the need to share specialized knowledge or institutional practices with U.S. counterparts, especially during the early stages of a business.
This is where corporate lawyers and immigration lawyers work together, advising business owners as they form new ventures in the U.S. The areas of immigration and corporate law intertwine in many of these steps, including the preparation of the business plan, which is used as a roadmap for formation as well as a key piece of evidence in the filing of an immigrant or nonimmigrant visa petition. Likewise, selecting and securing physical premises for business operations is necessary to satisfy various requirements. Many of the steps involved in the normal process of opening a new office in another country run congruently with the steps involved in a nonimmigrant visa petition for a new office.
Specifically, there is a growth of interest in E-2 investor and L-1A petitions for startup companies and those expanding into the U.S. from other countries. In general, the E-2 investor nonimmigrant classification allows a national of a country with which the U.S. maintains a treaty of commerce and navigation to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. The company would submit E-2 investor documents, including for the newly formed company, in a petition filed with the relevant U.S. consulate abroad for E-2 registration.
Once the company is registered, it can then bring employees who share the same nationality as the company (i.e. a German company can bring German employees), as long as they are either an executive or manager or an employee with specialized skills. The U.S. consulate normally issues a five-year E-2 visa stamp for entry to the U.S. in two-year increments.
In comparison, the L-1A nonimmigrant classification allows U.S. employers to transfer an executive or manager from an affiliated foreign office to an established office in the U.S. This classification also allows foreign companies that do not have an affiliated U.S. office to send an executive or manager to the U.S. with the purpose of establishing one.
In any category, companies contemplating a move to the U.S. should consider working closely with corporate and immigration counsel to identify the proper strategy for formation, as well as the best route for securing foreign talent in the U.S. Choosing the inappropriate visa or work permit category can be costly, especially with the recent increase in USCIS filing fees. Likewise, errors in corporate formation may carry heavy consequences from a liability or tax perspective.
Any strategic step into the U.S. market involving establishing a business and hiring employees should be carefully prepared to avoid potential legal pitfalls that could have severe consequences.
Tieranny Cutler, independent contract attorney, contributed to this article.
