This legal expert offers a breakdown of the immigration laws every non-resident entrepeneurial wannabe should know.
August 02, 2005
By Cliff Ennico
A reader sent in the following question to me recently in regards to starting a business while in the United States on a student visa:
"I'm an exchange student from France who's in the United States on a F-1 student visa. Because this visa allows me to work up to 20 hours per week, I was required to obtain an Individual Taxpayer Identification Number, or ITIN, from the IRS. I'd like to set up a small business during my stay here to buy and sell things online. Can I use my ITIN to do this?"
The short answer is "no." According to corporate and immigration lawyer Gabe Selig of Norwalk, Connecticut, an ITIN merely helps you comply with federal income tax laws. An ITIN is issued to people (mostly foreign nationals) who have to pay taxes or file returns with the IRS but who don't have a Social Security Number. Here are a few examples:
An alien who marries a U.S. citizen overseas and comes to the United States would be issued an ITIN until such time he or she obtains a "green card."
A non-resident alien buying real estate in the United States, such as the European nationals who are currently snapping up condos in Florida due to the sagging dollar, would be required to get an ITIN to pay real estate and other taxes here.
A foreign student who works up to 20 hours per week would be issued an ITIN in order to obtain a refund of Social Security, Medicare and other employment taxes that are withheld from their paychecks but which they're not legally obligated to pay.
An ITIN can't be used as legal identification nor can it be used to set up your own business in the United States. For that, according to Selig, you need either a green card, which entitles you to remain permanently in the United States and to obtain a Social Security Number, or one of the temporary visas that allow you to engage in entrepreneurial activities, such as the E-1 and E-2 visas.
These type of visas allow you to set up a company and employ people in the United States, provided you're willing to invest heavily in the business--generally around $1 million--although if you're planning to locate in a rural or inner-city area with higher-than-average unemployment rates, you may only have to invest $500,000 or so.
The E-1 and E-2 visas generally allow you to stay in the United States legally for a period of three to five years, and may be renewed if you can convince the U.S. Bureau of Citizenship and Immigration Services that the business is doing well and that you intend eventually to return to your country of origin.
Selig says that to qualify for an E-1 or E-2 visa, you have to make sure you retain ties with your country of origin. "If you're from France, for example," Selig says, "the Bureau will look to see that you continue to have bank accounts, own real estate or correspond regularly with family members there. If you have no family, bank accounts or real estate in France, it's a lot less likely that you intend to return there, and they'll be less likely to grant you the visa."
Selig also cautions that E-1 and E-2 visas are only issued to aliens from certain countries--those with whom the United States has signed treaties allowing for cross-border movement of entrepreneurs.
What about buying an ownership interest in an existing small business here in the United States? If the business is structured as a limited liability company or as a "C" corporation (not a Subchapter "S" corporation, which can be owned only by U.S. nationals), resident and non-resident aliens may become owners as long as the state of incorporation doesn't prohibit ownership by foreign nationals. Still, unless you apply for and are granted a green card, you'll still have to return physically to your home country when your visa term expires, even though you'll remain an investor in the U.S.-based small business.
What about just staying here when your current visa term expires? It's a bad idea to overstay your welcome, even though, Selig says, "it's very easy to do and about 10 million people are currently doing it." Unless you marry a U.S. citizen, he adds, it's almost impossible under current law to obtain a green card once become an illegal alien.
Whatever you decide to do, stay within the bounds of the law, and do everything you can to get a green card before your temporary student visa expires.
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