Immigration-Etats-Unis

Swiss strategies

2010-02-25T12:20:00.000-08:00

Strategies for the Swiss Entrepreneur

By Kathleen Lord-Black, Immigration Attorney
www.kathleenlord.com

Like many European countries, Switzerland participates in certain international agreements with the U.S. that must be considered before a Swiss national begins the process of opening a business or branch office in the U.S. In addition to immigration issues, the Swiss entrepreneur must also consider U.S. tax rules, estate planning, and state and local business regulations, among other regulations. This article discusses selected non-immigration (i.e., temporary work visas) and suggests strategies for the Swiss entrepreneur.

Many highly skilled workers from Switzerland are currently living in the U.S. holding E (Treaty Investor/Trader) Visas or L (Intracompany Transfer) Visas. The spouses of these E and L visa-holders are now allowed to apply for work authorization. This relatively new law opens the door for the spouse of the E or L visa-holder to establish a new business in the U.S., and this new business can later sponsor his/her spouse.

Visa Waiver Status

Even those who only have a temporary “visa waiver” may be able to open businesses in the U.S. Because Switzerland is a “visa waiver” country, a Swiss visitor need not apply for a visitor’s visa from the U.S. Embassy before coming to the U.S. However, the visitor will be questioned about the reasons for his/her visit upon entry into the U.S., and can only stay up to 90 days per visit. A stay under the visa waiver cannot be extended.

An even better alternative to the 90-day visa waiver is to apply for a B-1 visitor’s visa at the Embassy. This visa will allow a visit of six months in the U.S., and can be renewed while in the U.S. for another six months. After the one year, the entrepreneur must return to Switzerland and apply for the E or L visa.

A person in visitor status is not authorized to work in the U.S. However, in many cases, it may be the only non-immigrant status with which a Swiss entrepreneur can gain access to the U.S. during the pre-incorporation phase of starting a business in the U.S. A visitor from Switzerland is permitted to engage in commercial activities for his/her own enterprise only if these activities do not result in the performance of productive labor. Permissible activities include negotiating the purchase of a business or entering into contracts related to the new business, as well as other non-work related commercial activities. In other words, the Swiss visitor should not be actively managing the running of a business, nor be paid in the U.S. He or she may actually set up the business, but cannot run it while in visitor status. For example, an entrepreneur from Switzerland who already owns a business in Switzerland can come to the U.S. in visitor status, establish a subsidiary relationship with a U.S. company by acquiring at least 51% of the stock of the U.S. company, and, in this way, lay the foundation for a future L or E visa. The visitor must be careful to abide by all the restrictions and agreements inherent in visitor status. It is a delicate balancing act.

The L-1 Visa

The L visa (also called the “Intracompany Transfer Work Visa”) usually has a maximum of about seven years. It has definite usefulness for the foreign entrepreneur, especially if the entrepreneur is married (as discussed below). Often, the L-1 visa holder is transferred to the U.S. as an executive or senior manager of a multinational company. The L visa is also available to entrepreneurs who are coming to the U.S. to open a branch, subsidiary, or affiliate of his/her own small, privately-held company. The company can be owned by just a few people or can even be wholly owned by the entrepreneur. If the entrepreneur has performed the early stages of corporate formation abroad, and has established a foreign entity that will continue to operate, he/she may seek to establish a new office in the U.S. with the L visa. As with the E-2 visa (discussed below) the Immigration Service is looking for viable business entities before it will grant a visa for a foreign entrepreneur.

The E-2 Visa

Switzerland is a “treaty country” for the purposes of the E-2 visa. Of all the non-immigrant work visas, the E-2 visa is probably the most useful for the foreign entrepreneur. The applicant must own at least 51% of the company and be either the manager or an executive, i.e., someone with the background or capacity to make the business viable. The E visa is also available for employees who have the same nationality as the E-2 visa holder and who will work as either executives or supervisors. The Immigration Service will grant E-2 visas in cases where the enterprise is “active”, i.e., has the present or future capacity to generate income that is not exclusively for the purpose of generating a token living for the entrepreneur or his/her family. Business plans, job creation, and other evidence of business growth must be demonstrated. The E-2 enterprise need not be fully established, but it needs to be established at least partially in order to be considered “active.” Establishing an “active” enterprise cannot be accomplished on non-immigrant visas because they do not allow for work outside of the visa restrictions. However, with the “spousal advantage” discussed below, an “active” enterprise can be achieved.

The Spousal Advantage

As discussed above, the great advantage of both the E and L visas for small business entrepreneurs is that the spouses of E and L visa-holders have the right to apply for work authorization. Unlike their E and L spouses, whose work visas restrict them to specific employers and specific salaries, the spouses of E and L visa-holders can start up companies on their own, and later the new companies can sponsor the E and L visa-holding spouses. This is the kind of flexibility that every foreign enterprise needs for its initial start-up. The Immigration Service prefers a business that is established and viable, and the spousal advantage is an ideal way to have the company up and running in time to sponsor the E or L visa holder before his/her visa runs out.

The spouses of E and L visa-holders can prolong the family’s stay in the U.S., sponsor skilled workers from Switzerland and other countries, and take advantage of the tax breaks available to the self-employed, as well as other immigration and financial benefits. However, before embarking on a new enterprise in the U.S., it is strongly advised that the entrepreneur seek the advice of an immigration attorney, a corporate/business attorney, and a certified public accountant.

Kathleen Lord-Black
Attorney at Law
50 California Street
Suite 1500
San Francisco, CA 94111
Tel: (415) 205-5601
Fax: (415) 276-3161
www.kathleenlord.com

Checklist for B-1 Business Visitor's Visa

2010-02-25T11:45:00.000-08:00

If you are applying for a business visitor's visa at a U.S. Consulate abroad, the following checklist will be helpful. Please contact our office for more details. www.kathleenlord.com

1. Copy of bank statements showing adequate funds to support yourself for the 6 months duration of the visa (or other documents showing some other arrangement for adequate funds to be sent to you from your home country);

2. Itinerary of what you plan to do during the visit, e.g., list names and addresses of contacts you will visit in the U.S., including lawyers and other professionals (We can work on this after you arrive in the U.S.) You will need set out specific and realistic plans for the entire six-month period (see discussion of seminars and conferences below);

3. Copy of return ticket for return to home country before 6-month term of visa is over if you have one (or some other evidence that you do not plan to stay over the 6 month’s duration of the visa). You will be entitled to renew the B-1 for another 6-month period, but initially Immigration wants to know that your intent at the time of applying for the B-1 is to return before the visa expires in 6 months.) Proposing in your B-1 application a period of less than 6 months would have a better chance of success than proposing a period of stay in terms of remaining for the 6-months maximum period allowable under the B visa. For example, if all the business activities you list will reasonably take only 4 months, we should ask for 4 months -- or leave the time requested open (and they will probably grant 6 months);

4. Copy of documents proving the existence of the foreign employer, i.e., documents that show the foreign company has an office abroad and payroll is disbursed from the overseas office;

5. Letters from family explaining strong family ties to home country (should be notarized);

6. Copies of bills or other mail delivered to you at your home address in your home country, or other evidence that you maintain a foreign residence;

7. List of clients your business has in your home country, if any (or other documents showing permanent employment in your home country, meaningful business or financial connections in your home country, or other commitments that indicate a strong inducement to return to your home country);

8. documents showing future participation in business events (such as those sponsored by the French American Chamber of Commerce, German American Business Association). These organizations will hold seminars and other events in the U.S. that you can list in your application for B-1 as proper business activities you will engage in while on the B-1 (e.g., observing the conduct of business activity in the U.S., consulting with business associates, networking);

9. Letters from contacts that show a proper business purpose (including specific dates and goals of meetings):

Some acceptable business purposes include:

1) consultations with business associates,

2) travel for a scientific, educational, professional or business convention, or

3) conference on specific dates,

4) settle an estate, or

5) negotiate a contract.

Opening a Branch Office in the U.S.

2010-02-25T11:39:00.000-08:00

Many foreign corporations choose to do business in the United States simply through a branch office.

Advantages. By operating as a branch office of a non-U.S. corporation, many of the organizational burdens associated with the other forms are avoided.

Disadvantages. Operation as a branch subjects the foreign parent company to liability for the debts of its branch.

Tax Considerations. A foreign corporation with a U.S. branch generally is taxed in the same manner as a U.S. corporation on income derived from the branch's U.S. operations. However, under the normal rules of taxation applicable to U.S. corporations, a U.S. branch of a foreign corporation would have a tax advantage over a foreign owned U.S. corporation conducting the same business operations. That advantage results because the earnings of the U.S. corporation would be subject to taxation in the U.S. at the standard corporate rate and would be further subject to taxation again when distributed to the foreign shareholder as a dividend. Although the U.S. earnings of the U.S. branch of a foreign corporation would also be subject to U.S. taxation at the applicable corporate rate, internal distributions of the after tax profits would not constitute dividends subject to the second layer of tax. To eliminate that disadvantage for foreign-owned U.S. corporations, the U.S. has imposed a branch profits tax under which amounts deemed to be the equivalent of dividend distributions by the branch to its home office are subject to U.S. tax at the 30 percent rate generally applicable to dividends. Like the withholding tax imposed on dividends, the branch profits tax is subject to reduction or elimination pursuant to the terms of applicable tax treaties.

Please contact our office for more details. Tax information provided by the Offices of Spot-Lucy in San Francisco.

Lord-Black Law Offices
50 California Street, Suite 1500
San Francisco, CA 94111
www.kathleenlord.com

Corporations Checklist

2010-02-25T11:35:00.000-08:00

SETTING UP A CORPORATION IN CALIFORNIA
CHECKLIST OF REQUIREMENTS

1. Research and reserve corporate name.
2. Prepare and file Articles of Incorporation.
3. Prepare Minutes of First Corporate Meeting
4. Order corporate supplies.
5. Prepare Bylaws.
6. Prepare Initial Statement of Officers.
7. File with State Corporations Commission.
8. File and publish Fictitious Name Statement.
9. Obtain business license.
10. Prepare and file federal and state tax statements.
11. File Notice of Stock Transactions with Dept. of Corporations.
12. Secure a lease for office space.
13. Select and hire and corporate accountant.
14. Obtain necessary business insurance.
15. Pay applicable state sales and use taxes.
16. Pay applicable unemployment and disability insurance taxes.
17. Pay applicable Worker’s Compensation fees.
18. Obtain business supplies and equipment.
19. Open a corporate bank account.
20. Obtain work visas for foreign managers, executives, and workers.

Please contact our office for more details.

Kathleen Lord-Black
Attorney at Law
50 California Street, Suite 1500
San Francisco, CA 94111
www.kathleenlord.com

Advice for Canadian Entrepreneurs

2010-02-25T11:31:00.000-08:00

Canada is a country that participates in certain international agreements with the U.S. that must be considered before a Canadian national begins the process of opening a business or branch office in the U.S. In addition to immigration issues, the Canadian entrepreneur must also consider U.S. tax rules, estate planning, and state and local business regulations, among other regulations. This article will discuss selected non-immigration (i.e., temporary) work visas, and suggest strategies for the Canadian entrepreneur.

The Visitor’s and TN Visas

A Canadian visitor need not apply for a visitor’s visa from the U.S. Embassy before coming to the U.S. However, the visitor will be questioned about the reasons for his/her visit upon entry into the U.S. The TN work visa can be applied for at the border, giving the Canadian worker a three-year, renewable work visa.

A Canadian in visitor status is not authorized to work in the U.S. However, in many cases, it may be the only non-immigrant status with which a Canadian entrepreneur can gain access to the U.S. during the pre-incorporation phase of starting a business in the U.S. This is also true of the TN visa, which does not allow for self-employment. However, a TN visa holder or visitor from Canada may engage in commercial activities for his/her own enterprise that do not result in the performance of productive labor. Permissible activities include negotiating the purchase of a business or entering into contracts related to the new business, as well as other non-work related commercial activities. In other words, the Canadian visitor or entrepreneur on a TN visa should not be actively managing the running of a business nor be paid in the U.S. He or she may actually set up the business, but cannot run it while in visitor or TN status. For example, an entrepreneur from Canada who already owns a business in Canada can come to the U.S. in visitor or TN status, establish a subsidiary relationship with a U.S. company by acquiring at least 51% of the stock of the U.S. company, and, in this way, lay the foundation for a future L or E visa (discussed below). The visitor or TN holder must be careful to abide by all the restrictions and agreements inherent in the TN visa, as must the visitor who arrives visitor status.

The H-1B Visa

The H-1B is a three-year visa that is renewable to six years. It is very useful in many cases, but it is laden with certain burdens that make this type of visa unattractive to the foreign entrepreneur. The most oppressive of these is the requirement for a Labor Condition Application (“LCA”), which is filed with the U.S. Department of Labor. This, as well as other details regarding the H-1B, is the subject of another article.

The L-1 Visa

Like the H-1B, the L visa (also called the “Intracompany Transfer Work Visa”) usually has a maximum of about seven years. It has definite usefulness for the foreign entrepreneur, especially if the entrepreneur is married (as discussed below). Often, the L-1 visa holder is transferred to the U.S. as an executive or senior manager of a multinational company. The L visa is also available to entrepreneurs who are coming to the U.S. to open a branch, subsidiary, or affiliate of his/her own small, privately-held company. The company can be owned by just a few people or even wholly owned by the entrepreneur. If the entrepreneur has performed the early stages of corporate formation abroad, and has established a foreign entity that will continue to operate, he/she may seek to establish a new office in the U.S. with the L visa. As with the E-2 visa (discussed below) the Immigration Service is looking for viable business entities before it will grant a visa for a foreign entrepreneur.

The E-2 Visa

Canada is a “treaty country” for the purposes of the E-2 visa. Of all the non-immigrant work visas, the E-2 visa is probably the most useful for the foreign entrepreneur. The applicant must own at least 50% of the company and be either the manager or an executive, i.e., someone with the background or capacity to make the business viable. The E visa is also available for employees who have the same nationality as the E-2 visa holder and who will work as either executives or supervisors. The Immigration Service will grant E-2 visas in cases where the enterprise is “active”, i.e., has the present or future capacity to generate income that is not exclusively for the purpose of generating a token living for the entrepreneur or his/her family. Business plans, job creation, and other evidence of business growth must be demonstrated. The E-2 enterprise need not be fully established, but it needs to be established at least partially in order to be considered “active.” Establishing an “active” enterprise cannot be accomplished on non-immigrant visas because they do not allow for work outside of the visa restrictions. However, with the “spousal advantage” discussed below, an “active” enterprise can be achieved.

The Spousal Advantage

An advantage of both the E and L visas for small business entrepreneurs is that the spouses of E and L visa-holders have the right to apply for work authorization. Unlike their E and L spouses, whose work visas restrict them to specific employers and specific salaries, the spouses of E and L visa-holders can start up companies on their own, and then the companies can sponsor the E and L visa-holding spouses. Depending on the circumstances, the new company can then sponsor foreign workers such as the E and L visa-holding spouses for new L, E., or H work visas. This is the kind of flexibility that every foreign enterprise needs for its initial start-up. The Immigration Service prefers a business that is established and viable, and the spousal advantage is an ideal way to have the company up and running in time to sponsor the E or L visa holder before his/her visa runs out.

Before embarking on a new enterprise in the U.S., it is strongly advised that the entrepreneur seek the advice of an immigration attorney, a corporate/business attorney, and a certified public accountant.

Kathleen Lord-Black
Attorney at Law
50 California Street
Suite 1500
San Francisco, CA 94111
Tel: (415) 205-5601
Fax: (415) 276-3161
www.kathleenlord.com
www.immigration-etats-unis

“Auto-Entrepreneur” is Great News for French Entrepreneurs

2010-02-25T11:29:00.000-08:00

By Kathleen Lord-Black, Immigration Attorney
www.kathleenlord.com

French entrepreneurs who wish to start businesses in France and the U.S. have certain (often formidable) administrative hurtles to overcome in both countries. In the U.S., for instance, they must be able to set up a business while, at the same time, not actually earn an income from any U.S. source. This is a delicate balance that is almost impossible to achieve without first establishing a business in France.

As of the 1st of January 2009, France has introduced major changes to the self-employment system. The new system called 'auto-entrepreneur' makes it easier, quicker and cheaper for an individual entrepreneur to start up a small business in France. Later on, using the new French business as a base, the entrepreneur can open a branch, affiliate or even a separate business in the U.S.

Under the auto-entrepreneur system, the new business an entrepreneur will set up in France can be started “on a shoestring”, i.e., with only a minimal business presence. For instance, the business can be based in a “virtual office” in France (i.e., in an office arrangement in which mail and the telephone are covered, and furnished office space is available on an hourly basis). If the new business is located in the entrepreneur’s home, the necessity to have an administrative permit to use the ground floor of the main house as an office or as commercial premises will be no longer compulsory under the auto-entrepreneur system.

After it is set up, the new French business can then support a French entrepreneur who wishes to start a business in the U.S. The entrepreneur can almost immediately apply for a B-1 (business visitor’s visa), followed later by an E (Treaty Investor visa). Another option is the L (intra-company transfer visa). After a year in operation in France, the new French company can support an application for the L visa, which in turn can lead to permanent residency in the U.S.

With auto-entrepreneur, a small business can be set up online. Registration in the "Registre du Commerce et des Sociétés (RCS)" or in the "Registre des Métiers (RM)" is no longer compulsory.

Under the auto-entrepreneur system, there will be limits on turnover of €80,000 for commerce businesses and €32,000 for service-based businesses. Social charges will much more affordable. For instance, businesses engaged in commercial activities should expect to pay 13% of their annual turnover in social charges and taxes while service-based businesses will pay 23% of their annual turnover in social charges and taxes.

Probably the main advantage is that, if an auto-entrepreneur does not have a turnover, s/he won't have to pay social charges at all. Another benefit is that the auto-entrepreneur does not have to pay the "VAT" on their business activity.

Registering into the auto-entrepreneur system is much simpler as there are no courses to attend and no registration fees. The entrepreneur will simply visit his/her local 'Chambre de Commerce' or 'Chambre de Métiers' and fill out a form, either in person or online.

Immediately thereafter, with the help of an experienced immigration/business attorney, the auto-entrepreneur can begin to plan the details of his/her future successful life in the U.S.

Strategies for the German Entrepreneur

2010-02-25T11:03:00.000-08:00

Many highly skilled workers from Germany are currently living in the U.S. holding E (Treaty Investor/Trader) Visas or L (Intracompany Transfer) Visas. The spouses of these E and L visa-holders are now allowed to apply for work authorization. This relatively new law opens the door for the spouse of the E or L visa-holder to establish a new business in the U.S., and this new business can later sponsor his/her spouse.

By way of background, Germany is a country that participates in certain international agreements with the U.S. that must be considered before a German national begins the process of opening a business or branch office in the U.S. In addition to immigration issues, the German entrepreneur must also consider U.S. tax rules, estate planning, and state and local business regulations, among other regulations.

Visa Waiver Status

Even those who only have a temporary “visa waiver” may be able to open businesses in the U.S. Because Germany is a “visa waiver” country, a German visitor need not apply for a visitor’s visa from the U.S. Embassy before coming to the U.S. However, the visitor will be questioned about the reasons for his/her visit upon entry into the U.S., and can only stay up to 90 days per visit. A stay under the visa waiver cannot be extended.

An even better alternative to the 90-day visa waiver is to apply for a B-1 visitor’s visa at the Embassy. This visa will allow a visit of six months in the U.S., and can be renewed while in the U.S. for another six months. After the one year, the entrepreneur must return to Germany and apply for the E or L visa.

A person in visitor status is not authorized to work in the U.S. However, in many cases, it may be the only non-immigrant status with which a German entrepreneur can gain access to the U.S. during the pre-incorporation phase of starting a business in the U.S. A visitor from Germany is permitted to engage in commercial activities for his/her own enterprise only if these activities do not result in the performance of productive labor. Permissible activities include negotiating the purchase of a business or entering into contracts related to the new business, as well as other non-work related commercial activities. In other words, the German visitor should not be actively managing the running of a business, nor be paid in the U.S. He or she may actually set up the business, but cannot run it while in visitor status. For example, an entrepreneur from Germany who already owns a business in Germany can come to the U.S. in visitor status, establish a subsidiary relationship with a U.S. company by acquiring at least 51% of the stock of the U.S. company, and, in this way, lay the foundation for a future L or E visa. The visitor must be careful to abide by all the restrictions and agreements inherent in visitor status. It is a delicate balancing act.

The L-1 Visa

The L visa (also called the “Intracompany Transfer Work Visa”) usually has a maximum of about seven years. It has definite usefulness for the foreign entrepreneur, especially if the entrepreneur is married (as discussed below). Often, the L-1 visa holder is transferred to the U.S. as an executive or senior manager of a multinational company. The L visa is also available to entrepreneurs who are coming to the U.S. to open a branch, subsidiary, or affiliate of his/her own small, privately-held company. The company can be owned by just a few people or can even be wholly owned by the entrepreneur. If the entrepreneur has performed the early stages of corporate formation abroad, and has established a foreign entity that will continue to operate, he/she may seek to establish a new office in the U.S. with the L visa. As with the E-2 visa (discussed below) the Immigration Service is looking for viable business entities before it will grant a visa for a foreign entrepreneur.

The E-2 Visa

Germany is a “treaty country” for the purposes of the E-2 visa. Of all the non-immigrant work visas, the E-2 visa is probably the most useful for the foreign entrepreneur. The applicant must own at least 51% of the company and be either the manager or an executive, i.e., someone with the background or capacity to make the business viable. The E visa is also available for employees who have the same nationality as the E-2 visa holder and who will work as either executives or supervisors. The Immigration Service will grant E-2 visas in cases where the enterprise is “active”, i.e., has the present or future capacity to generate income that is not exclusively for the purpose of generating a token living for the entrepreneur or his/her family. Business plans, job creation, and other evidence of business growth must be demonstrated. The E-2 enterprise need not be fully established, but it needs to be established at least partially in order to be considered “active.” Establishing an “active” enterprise cannot be accomplished on non-immigrant visas because they do not allow for work outside of the visa restrictions. However, with the “spousal advantage” discussed below, an “active” enterprise can be achieved.

The Spousal Advantage

As discussed above, the great advantage of both the E and L visas for small business entrepreneurs is that the spouses of E and L visa-holders have the right to apply for work authorization. Unlike their E and L spouses, whose work visas restrict them to specific employers and specific salaries, the spouses of E and L visa-holders can start up companies on their own, and later the new companies can sponsor the E and L visa-holding spouses. This is the kind of flexibility that every foreign enterprise needs for its initial start-up. The Immigration Service prefers a business that is established and viable, and the spousal advantage is an ideal way to have the company up and running in time to sponsor the E or L visa holder before his/her visa runs out.

The spouses of E and L visa-holders can prolong the family’s stay in the U.S., sponsor skilled workers from Germany and other countries, and take advantage of the tax breaks available to the self-employed, as well as other immigration and financial benefits. However, before embarking on a new enterprise in the U.S., it is strongly advised that the entrepreneur seek the advice of an immigration attorney, a corporate/business attorney, and a certified public accountant.

Kathleen Lord-Black
Attorney at Law
50 California Street
Suite 1500
San Francisco, CA 94111
Tel: (415) 205-5601
Fax: (415) 276-3161
www.kathleenlord.com