Visas & Advice Detail
The business of visa options
American attorney at law Norma Henning provides a full answer to an Emigrate's readers question, which covers two business visas and a fiancé visa
Dear Emigrate,
I am need of some advice. I am a US citizen who has been living and working in the UK as a nurse as well as being a director of my boyfriend's IT consultancy limited company. We would like to move to the US in the next few months. I am aware that the best way would be to get married. But we want to move before we are married. We are not sure how to go about moving his company to the US. I think there are two options: E-2 or L-1, but we're not sure what would be the best way. Ideally, we would be able to continue to work with the clients here in the UK - that is, bill in pounds as well as getting new clients in the US. As well has having our own money to invest, we have at least two others willing to invest in the new company.
My questions are:
1. How long do E-2 and L-1 visas take to obtain and about how much do they cost?
2. Are there any other options?
I would greatly appreciate any advice that you have and thank you in advance for your help.
Laura
Norma Henning replies:
Dear Laura,
The answer here depends on the size of your boyfriend's company, your long-term goals and on whether he is already planning to make the US his permanent home. A person who has 'immigrant intent' is ineligible for certain visas – for example tourist visas, student visas, etcetera – and also the first issuance of an E visa (though exceptions exist for extensions in the case of the E category). For all those visas, one must state the intent to depart the United States. From your question, I gather that this is not the case. Exceptions to this rule do exist for H-1B and L-1A visas, which are so-called 'dual intent' visas – that is, an applicant may have the intent to make the US his/her permanent home.
Whether your boyfriend is eligible for an L-1A depends on whether he can be classified as a 'multinational executive'. This largely depends on the length of time he has worked as a manager or executive of his UK company, the size of his UK company and the size of the planned operation in the US. Also, the UK and the US companies must have a qualifying relationship as either a subsidiary or an affiliate, or a company controlled by the same individuals. Joint ventures also work, so investors are definitely an option.
Although this visa was conceived for employees, it also works nicely for owners of companies that establish branches in the US. For this visa, it is actually required that the foreign entity continue in existence – so this might fit nicely into your plans. A strong and well-reasoned business plan has to show that the US company has a good chance of success and will also require the services of a manager or executive within a short time.
Your boyfriend would be classified as an executive if he primarily:
1. Directed the management of the organization or a major component or function;
2. Established goals and policies;
3. Exercised wide latitude in discretionary decision making; and
4. Received only general supervision or direction from higher level executives, board of directors or stockholders.
He would classed as a 'manager' if he primarily:
1. Managed the organisation, department, subdivision, function or component;
2. Supervised and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organisation or department or subdivision of the organisation;
3. Had authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to function managed; and
4. Exercised discretion over day-to-day operations of the activity or function.
In determining whether an individual is acting in a managerial or executive capacity, the United States Citizenship and Immigration Service (USCIS) reviews the reasonable needs of the organisation, component or function in light of the overall purpose and stage of development of the organisation, component or function. From this explanation, you see that both the UK and the US operation would have to be sizeable – which does not necessarily lend itself to the organic growth of a small business.
With Premium Processing (that is, paying an extra $1,000 in application fees, in addition to the base fee of $320, for an expedited service), a well-documented qualifying application should have no problem being approved by the USCIS in 15 days. The USCIS approval is then presented to a consular officer in the UK, who – unless he/she has reservations of his/her own - issues the visa to allow your boyfriend to enter the US and begin operations. A newly established operation has to prove business operations within one year, which would necessitate another application, which should be granted for three years. There is a seven-year limit under this visa. With the multiple applications required, filing fees – and attorney's fees - the cost does add up. Once you are in the US, you could then get married, and your new husband could adjust his status to that of a permanent resident.
If immigrant intent were not an issue, an E-2 visa would also be an option. The merits of E visa cases are decided at US Embassies and Consulates without the need to get an approval from USCIS. However, due to the large volume of applications received, processing times have been an issue at the US Embassy in London, so the L-1A option would definitely be faster. The E-2 requires a 'substantial investment' into an active US enterprise, which leaves an impact in the US economy. For a new start-up company, 'substantial' means enough to get operations started. Impact in the economy is shown with a strong business plan demonstrating that the company will generate enough revenue to pay US workers. Even if the company is owned by other UK citizens, it could employ your boyfriend in a managerial capacity.
Another option – albeit not a viable one in my opinion - would be applying for a K-1 fiancé visa for your boyfriend. Processing requires an application to USCIS, which usually takes several months. You would have to prove that you have met at least once, have a bona fide intention to marry and that you can provide for him. Once K status has been established, he would have to schedule a medical exam, both of you have to pass criminal background checks, and he has to process through the US Embassy in London. The marriage has to be entered into within 90 days of arrival in the US, and he could apply for adjustment of status once you are married. I am not sure this avenue bears any advantages in your situation, as this visa is really intended for a new fiancé to have an opportunity to see the US, meet the parents, so to speak, and decide whether to get married. Your fiancé could apply for work authorisation once he is here, but that takes up to 90 days. If the decision to marry has already been made, I would get married and process in as an immigrant. If you do not get married within 90 days after his entry as a K-1 fiancé, he would have to go home, which takes us back to square one and costs extra money.
One thing I would not do is enter the US as a tourist on the visa waiver, get married here and just stay. If a visitor (or anyone with a visa that requires non-immigrant intent) takes any steps toward permanent residence within a relatively short time after arrival, USCIS will presume that he/she had already intended to do so and therefore intentionally misrepresented his/her intentions upon entry. The Service may render a Finding of Fraud and order the person to leave. Such a situation is very difficult to overcome.
To cut a long story short – each visa option has its advantages and disadvantages. If you truly plan to be married anyway, you would potentially save a lot of time and definitely money by going the marriage route. Whether this is possible in the next 'few' months, however, is questionable. I believe you should budget at least six months for the process, but the wait may be worth it. You would first file an application for an 'alien' relative, and he would then process through the US Embassy in London. He would then enter as a permanent resident and be able to grow his US company organically without much up-front costs.
Norma Henning: Attorney at Law
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