Why am I restricted to H-1B or O-1 visa?

[CoffeeBeing 0]

I'm a software developer based in Europe but working remotely as a freelancer, primarily with US-based clients. 

I have long considered moving to the US, but the visa process is, for many, unclear, lengthy and difficult. What I see is that most people are having very few chances with the H-1B lottery, while the O-1 is incredibly difficult. 
Even though I do have my name on a US-based patent and have worked for and with US-based clients, I still do not think this is sufficient for an O-1 visa. I also heard it's extremely difficult to find a job in a big tech company (Google/Netflix/Apple) even with many years of experience and skills, because there are many people that don't require visa sponsorship already living in the US. 

Why do most people try for H-1B or O-1 and not E-2 or L-1 (by creating a business in Europe themselves and then opening a branch in the US, or directly an LLC)?
On paper, both the E-2 and L-1 sound better than lotteries or claiming exceptional ability. Why should I not create an LLC, and choose an amount of investment (let's say 100-200k) and actively work on it? This might even be better for freelancing work as it paves the way for write-offs and better taxation due to real estate investments (i.e. for an office) and other expenses. Additionally, the E-2/self-funded L-1 approach wouldn't depend on an employer which can provide a sense of sanity as there's no fear of getting fired.

 

Please let me know if there's anything here that I'm missing - do you agree that the E-2 route by opening an LLC and invoicing my clients through it can actually be a better route than an H-1B or an O-1?

Edited Saturday at 01:27 PM by CoffeeBeing
typos

[JeanneAdil 6,944]

Maybe because L1 and E2 are nonimmigrant visas 

[CoffeeBeing 0]

50 minutes ago, JeanneAdil said:

Maybe because L1 and E2 are nonimmigrant visas 

 

Sure, but it's a headstart and once you're in the US it might be easier to network, meet people in person and find a more solid way for a long-term visa. Let's say it takes me 4-6 years to file for an H-1B or an O-1, which is a realistic scenario, especially for the H-1B considering a lottery chance of 25%. Why would I wait all these years in Europe instead of moving right away with an E2 or an L1, which do not prevent me from filing for an H-1B or an O-1 later on? If I have the legal rights to work and live, why would I not do it? 

I guess you're saying that the uncertainty of a non-immigrant visa would discourage people, which makes sense, especially if you have a family. But for younger people, not afraid of failing and coming back, I guess there's nothing to lose?

[OldUser 9,152]

Firstly, because L-1 and E-2 are non-immigtant visas.

 

Secondly, because even these visas are not given out like candy. You need to have a legitimate business, not set up one to circumvent immigration rules. Having E-2 with minimal investment and yourself only working for it is unlikely going to be approved.

 

If you were on the other hand to start a business with $10 million investment and hire 5-10 people, then your chances of getting E-2 are higher. 

 

But not many people have these funds. Imagine hiring even 2-3 software engineers for your business. Salaries are easily $80-100K+ for a fresh graduate dev with minimal experience in many areas. How is your budget of $100-200K going to cover that, even one employee?

 

I came on work visa and there were slightly over 100 employees in the company. And even then some employees getting work visas had to put effort to prove their employer is legit to staff in overseas US consulate.

Edited Saturday at 03:16 PM by OldUser

[CoffeeBeing 0]

1 minute ago, OldUser said:

Firstly, because L-1 and E-2 are non-immigtant visas.

 

Secondly, because even these visas are not given out like candy. You need to have a legitimate business, not set up one to circumvent immigration rules. Having E-2 with minimal investment and yourself only working for it is unlikely going to be approved.

 

If you were on the other hand to start a business with $10 million investment and hire 5-10 people, then your chances of getting E-2 are higher. 

 

Thank you for your detailed and thoughtful response. Here are some thoughts:

Instead of invoicing my clients in Europe, I can set up an LLC right now and invoice them through my LLC, which is what a European accountant suggested for tax-related purposes, without discussing moving to the US. Please note that taxation in Europe is pretty high for self-employed individuals. Then, I can buy or build an office (or other real estate) as part of my LLC, which is a contribution to the US economy while allowing me to write off a significant portion of the expenses. 

 

Would 1-2 years of doing this help before filing for an E-2 visa, or would I need to hire people to prove that my company is not made up to bypass immigration rules?
I have legitimate plans to hire people remotely anyway, I'm just wondering what "proven record" and "legit business" mean, and what may come up during interviews.

[OldUser 9,152]

22 minutes ago, CoffeeBeing said:

 

Thank you for your detailed and thoughtful response. Here are some thoughts:

Instead of invoicing my clients in Europe, I can set up an LLC right now and invoice them through my LLC, which is what a European accountant suggested for tax-related purposes, without discussing moving to the US. Please note that taxation in Europe is pretty high for self-employed individuals. Then, I can buy or build an office (or other real estate) as part of my LLC, which is a contribution to the US economy while allowing me to write off a significant portion of the expenses. 

 

Would 1-2 years of doing this help before filing for an E-2 visa, or would I need to hire people to prove that my company is not made up to bypass immigration rules?
I have legitimate plans to hire people remotely anyway, I'm just wondering what "proven record" and "legit business" mean, and what may come up during interviews.

The biggest things to overcome in your case would be marginality requirement and substantial at risk investment.

You may need to actually find an attorney in the US to help you build the case for immigration. Again, I personally see any business with under $500K investment as a tough one to get approved, but I live in California where standards of living are pretty high.

 

There's quite a few good videos on YouTube explaining most common denial reasons for E-2 and L-1. They're worth watching.

Edited Saturday at 03:41 PM by OldUser

[appleblossom 3,980]

3 hours ago, CoffeeBeing said:

I'm a software developer based in Europe but working remotely as a freelancer, primarily with US-based clients. 

I have long considered moving to the US, but the visa process is, for many, unclear, lengthy and difficult. What I see is that most people are having very few chances with the H-1B lottery, while the O-1 is incredibly difficult. 
Even though I do have my name on a US-based patent and have worked for and with US-based clients, I still do not think this is sufficient for an O-1 visa. I also heard it's extremely difficult to find a job in a big tech company (Google/Netflix/Apple) even with many years of experience and skills, because there are many people that don't require visa sponsorship already living in the US. 

Why do most people try for H-1B or O-1 and not E-2 or L-1 (by creating a business in Europe themselves and then opening a branch in the US, or directly an LLC)?
On paper, both the E-2 and L-1 sound better than lotteries or claiming exceptional ability. Why should I not create an LLC, and choose an amount of investment (let's say 100-200k) and actively work on it? This might even be better for freelancing work as it paves the way for write-offs and better taxation due to real estate investments (i.e. for an office) and other expenses. Additionally, the E-2/self-funded L-1 approach wouldn't depend on an employer which can provide a sense of sanity as there's no fear of getting fired.

 

Please let me know if there's anything here that I'm missing - do you agree that the E-2 route by opening an LLC and invoicing my clients through it can actually be a better route than an H-1B or an O-1?

 

I don't think 'most people' do try for O-1, that's a pretty rare beast. H1-B yes, but that's because they're being sponsored by a company, I'd imagine that anybody with their own business would look at L1 or E2 but that's not the case for most immigrants who move for work. I know a lot of people who moved with their current employer purely because they wanted the expat assignment deal i.e. house/car/schooling paid for, plus everything taken care of. They can then open their own business in the US once they've got green cards and a heck of a lot of money behind them thanks to the corporate relocation! And without having the restrictions of an entrepreneur related visa i.e. having to hire x amount of US citizens, having to show sustainable growth of the business, having to invest such large amounts of money on physical premises etc (as @OldUser said, $100-200k isn't likely to cut it). That's a lot of pressure for a new business when your visa is tied to the business being a success. So you'd replace 'fear of being fired' with 'fear of the business failing and then having to leave the country within 30 days'. 

 

Edited Saturday at 04:35 PM by appleblossom

[appleblossom 3,980]

2 hours ago, JeanneAdil said:

Maybe because L1 and E2 are nonimmigrant visas 

 

So are H1B and O1. 

[OldUser 9,152]

44 minutes ago, appleblossom said:

 

So are H1B and O1. 

That's true. With H-1B though, it's dual intent visa with possibility of employer sponsoring for GC. E-2 and O-1 on the other hand, don't have obvious path to permanent residency AFAIK.

[JeanneAdil 6,944]

Not sure how it benefits for tax purposes /ours are high 

for what purpose if you do not live here?

Have you checked into what 7 states don't have income taxes?

Cheapest state to rent office space?

You need to do a lot of research / not just for the visa but the feasibility of what u plan.

Like why choose the US?

 

BUT you can do LLC

Steps to Forming an LLC as a Non-U.S. Resident:

1. Choose a State: Research which state best suits your business needs and consider factors like cost, tax laws, and flexibility. 
    
2. Name Selection: Choose a unique and available name for your LLC. 
    
3. File Articles of Organization: This is the official document that registers your LLC with the state. 
    
4. Appoint a Registered Agent: This individual or entity will receive important legal and business communications on behalf of your LLC. 
    
5. Obtain an ITIN: Apply for an ITIN from the IRS. 
    
6. Establish a Business Bank Account: You may need a U.S. bank account to operate your business. 
    
7. Consider an Operating Agreement: This document can help clarify the rights and obligations of LLC members. 

[appleblossom 3,980]

1 hour ago, OldUser said:

That's true. With H-1B though, it's dual intent visa with possibility of employer sponsoring for GC. E-2 and O-1 on the other hand, don't have obvious path to permanent residency AFAIK.

 

H1-B and L-1 are both dual intent. But a green card is also perfectly possible from O-1 and E-2 - I got EB green card with O-1. 

 

 

[appleblossom 3,980]

18 minutes ago, JeanneAdil said:

Not sure how it benefits for tax purposes /ours are high 

for what purpose if you do not live here?

Have you checked into what 7 states don't have income taxes?

Cheapest state to rent office space?

You need to do a lot of research / not just for the visa but the feasibility of what u plan.

Like why choose the US?

 

 

 

Totally agree with this. Income taxes in the US are slightly lower than the UK (at least where I am), but by the time you've factored in healthcare there is no difference, and cost of living is MUCH higher. Any states without federal income tax don't work out being any cheaper once you've got property tax and state taxes, we did look at moving to NH because of the lack of income tax but it made about $200 difference a year IIRC!

 

I own a few businesses and can't see any financial advantage to opening one up in the US, but I guess it depends where in Europe the OP is referring to (I'm only basing that on my experience of the UK).