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Elon Musk, the founder of SpaceX and Garrett Camp, the co-founder of Uber are amongst the many immigrant entrepreneurs that have been attracted to the United States to develop their companies and ideas. Immigrant startup founders have not only transformed travel in the US but also the healthcare industry, the employment sector, and information technology.  More than half of US startup companies valued at one billion dollars or more were started by immigrants. Those companies are collectively valued at $168 billion and their immigrant founders are responsible for creating an average of over 700 US jobs per company.

Although historically the US has been perhaps the most attractive country for immigrant startups, under the Trump administration’s approach towards immigration policies, foreign investors and entrepreneurs are now exploring options in other countries. The recent pronouncement of the “Buy American, Hire American” policy and the seemingly anti-immigrant messaging from Homeland Security has stoked a belief in professional immigrant communities that the US may no longer be “open for business” for foreign nationals looking to invest and create jobs for US citizens.

I see it in my office every day – foreign entrepreneurs and investors are increasingly reluctant to pursue opportunities in the US for fear of denials in their cases. Even when investors have funds that can be properly traced and are investing in viable businesses, they are concerned that the current administration will ultimately deny their case, causing several hundred thousand dollars to be tied up in businesses that the investors cannot personally oversee and develop. Similarly, EB-5 investors, who typically invest through Regional Centers with the sole purpose of immigrating to the United States, are worried that they are investing money they have accumulated over years of saving. They are concerned that if their case is denied, they will be unable to gain residency in the US and their funds will be similarly tied up in an investment that they only pursued with the goal of immigrating.

Despite these valid concerns, my observation and experience under the first year of President Trump is that there is hope yet for investors and entrepreneurs who wish to pursue opportunities in the US. In fact, the US remains a country that thrives from startups and incentivizes foreign entrepreneurs with more resources, opportunities and support than any other country. Though the “Buy American, Hire American,” policy has resulted in L-1 (transfers of managers and executives) Visas and H-1B (temporary professional workers) Visas being held to a higher standard, both the E-2 (treaty investor) Visa and the EB-5 Visa are still very strong options with high approval rates. In preparation of filing, it is important to detail the specific experience and expertise of the applicant that sets him or her apart from others to demonstrate that he is exceptionally qualified for the Visa. Though the administration may soon raise the minimum investment amount for EB-5 Visas, such applications would appear to be processed currently in the same manner as they were prior to the Trump Administration with no additional scrutiny.

It should be noted that other possible creative avenues include the O-1 (temporary extraordinary ability) Visa, EB-1 (green card based on extraordinary ability) Visa or a National Interest Waiver. If an entrepreneur has made innovative changes to his or her field and has been recognized for those changes, the entrepreneur may be eligible for an O-1 Visa or even self-petition for a green card under the EB-1 Visa category. The National Interest Waiver is for individuals who can demonstrate that their product or service will serve the U.S. national interest, enabling them to self-petition and ultimately obtain a green card in an expedited fashion. While there is no doubt the first year of the Trump Administration has created challenges for foreign nationals looking to migrate the US, a number of viable options for immigrant investors and entrepreneurs remain available to the savvy professional.  Contact our office should you wish to schedule a consultation for us to discuss in greater detail.

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