Q: I am a British national who spends most of my time in the United States. I have a business back home, but I would like to start one or more projects here. Are there any restrictions? Am I allowed to oversee such a business?
A: Any foreign national can start a business in the United States while in the United States as a business visitor. The business visitor (B-1) visa regulations permit a person to establish a business in the United States and attend board meetings as a director. As a business visitor, you can gain entry to the United States for up to six months on each entry using a B-1 visa (although the admission period could be shorter), and three months using the Visa Waiver Program. However, you could not manage or direct the operations of the business as a business visitor on a B-1 visa. For that, you would need employment authorization in the United States, which could be accomplished in one of several ways:
1. You could incorporate a United States subsidiary or affiliate of your overseas company and transfer yourself to the United States as an intracompany transferee (L-1 visa status). You would need to serve in a managerial or executive role or in a "specialized knowledge" capacity in the United States. You would also need to have served in a managerial, executive or specialized knowledge capacity for the company overseas for at least one year within the three years prior to your transfer to the United States. There are special documentary requirements for persons transferring to start-up companies in the United States under the L-1 provision. The L-1 visa is good for an initial period of three years and is renewable for two more years if the person is a specialized knowledge person, or twice for two years if the person is a manager or an executive. For persons being transferred to a start-up company, the visa is valid for an initial period of one year. In this case it is renewable for the full three-year initial period if the company can show after one year that it is operating and functional and requires the services of a manager, executive or specialized knowledge person.
2. Another possible way to obtain authorization to work in the United States is to set up a business in the United States that invests a substantial amount of capital or creates substantial trade between the countries. You state that you are a citizen of Great Britain; Britain and the United States have a treaty of friendship, commerce and navigation which permits British citizens to make a substantial investment in the United States (or engage in substantial trade between the countries) and obtain employment authorization to manage and direct their investment or the trade. The investment must be the amount that is needed to make the company operational for at least the first year. Your company in Britain, if majority-owned by British citizens, could also make the investment in the United States and own the United States business. The visa that would be issued in this case would be either E-1 (Treaty Trader) or E-2 (Treaty Investor). E visas are normally issued for five-year periods and are renewable indefinitely as long as the substantial trade or investment continues in the United States.
A note to individuals not from Great Britain who are interested in setting up a business in the United States: This treaty investor visa information only applies to people from countries that have treaties of friendship, commerce and navigation, or bilateral investment treaties, with the United States. Click herefor a list of these treaty countries.
Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.
Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.