Russian and PRC Chinese companies tend to follow the trail blazed by their Taiwanese predecessors. The USCIS tends to not only question Russian and PRC Chinese start-up company applications, but often sends the files to field investigators who visit the premises in the home country and the US to check the bonafides of the visa petition.

This practice not only delays processing but also creates some unfortunate results. We have had to appeal several cases where the USCIS checked the wrong address or the manager was simply out of the office when the USCIS investigator knocked on the door.

Technically, the USCIS must consider mitigating circumstances when determining compliance with the one year of doing business rule. Reasonable excuses include bad luck, unforeseen delays, and the fact that some businesses take longer to establish than others.

The USCIS tends to take a harsh and simplistic view. If after one year there are no new employees and no trend of increasing gross sales, no visa extension will be issued.

H-1B visa holders are limited to six consecutive years in the US. The L-1A visa holders are restricted to seven consecutive years in the US. At the end of the maximum validity period they may change to any other status than H-1B or L-1A, often El/2, or they must leave the US for at least one year before reapplying in H-1B or L-1A status.

L-1A visa renewals become difficult unless the manager makes tangible progress in establishing an active US business. Tangible progress includes:
• hiring two or three people
• showing a trend of increasing gross sales
• acquisition of necessary capital assets; or
• construction/remodel of premises or a factory.

Larger companies fare better in this regard as they can say their lack of progress is due to bigger projects which take more time to launch. They can easily prove they have the capital necessary to continue the project. Small companies have more difficulty and may decide to use H-l status instead or change to H-1B status. El/2 visa will not work without active trade or a substantial investment.

So what are the regulation and terms should be consider on it? The first one is you should establish some company. No matter what visa alternative you ultimately choose you will need to establish a US company licensed to do
business in a particular state. The USCIS will not consider most business oriented visa petitions unless a US company
exists. Although there are reasons to establish partnerships, joint ventures or even to use individual ownership, in
most cases it’s best to form a limited company or a corporation.

The USCIS is familiar with corporations. It is not familiar with limited partnerships, complicated general partnerships, and limited liability companies. If you can help it, don’t complicate your petition.
Simply put, shareholders of corporations only risk their capital in the company. Partners or sole proprietors place all their assets at risk in the event of a law suit or business failure. Limited liability companies, Sub S corporations and limited partnerships are hybrids between corporate and individual ownership.

The US levies estate or death tax upon the death of a US tax resident. US tax residents include some non immigrants, permanent residents and citizens. The estate tax on non immigrants and permanent residents is much higher than the estate tax on citizens. Corporations have eternal life. Individual shareholders will die but not the corporation.

A corporation owned by a foreign corporation doesn’t even have a shareholder that can die. If there’s no death there’s no estate tax. Using a foreign corporation to own the shares of the US corporation not only works best for most immigration purposes, but also offers the possibility of reducing estate taxes.

The applicant must work in a qualifying capacity (as an executive, manager or specialized knowledge employee) for a foreign member of the international organization, for one of three years preceding the transfer to the American member of the international organization in the same capacity. L visa applicants file Form 1-129 and the L supplement with the USCIS.

To qualify as an international organization the parent company must establish a branch office, subsidiary company or affiliate company in the US. From an immigration point of view, it makes little difference whether a branch, subsidiary or affiliated company is formed as long as the arrangement qualifies as an international organization for L-l purposes. International organizations are as follows.

Branch office in the US
A branch office refers to the parent company registering itself to do business in the US, as opposed to forming a subsidiary or affiliate.

Subsidiary company
A subsidiary for L visa purposes is a US company owned 50 per cent or more by a foreign corporation.

Affiliated company
An affiliated company is a business linked by at least 50 per cent common ownership to the foreign parent. For L-l purposes the foreign parent must directly or indirectly control the US branch, subsidiary or affiliate. Control in this case generally means 50 per cent or more direct or indirect ownership.

A 50-50 joint venture between a foreign and American company may be an affiliate of the foreign company since the foreign company owns half of the US business. The joint venture could be a partnership between the US company and the foreign company’s wholly-owned US subsidiary. Or it could be a corporation owned half by US shareholders or companies, and half by the foreign company or its subsidiary. Many foreign companies transfer managers, executives or specialized knowledge persons to US joint-venture operations.

The US maintains two interdependent non-immigrant working visa systems. E visas are the product of treaties, negotiated between the US and other countries and administered by the Department of State through embassies and consulates. Congress created the other commonly used non-immigrant work visas H and L through domestic law. The USCIS serves as the lead agency for administering H and L visas or other visas created by domestic law.

Most companies use a combination of E-1/2, H-1B, L-1A and L-1B visas to staff their US operations. The same person may qualify for an E visa category, or an H or L visa category. The combination of the H and L categories describes the same work activities as the E categories.

E visas include professionals, managers, executives and essential skill employees, whereas H and L include professionals, executives, managers and specialized knowledge employees. Differences in corporate ownership and organization, convenience, or the enforcement policies of the initial governmental agency you’ll be working with, the USCIS or Department of State, determine whether to apply for an E visa or an H or L visa.