1.1           Corporation

An S corporation is not subject to double taxation, but it is limited to only 100 shareholders, all of whom must be US citizens/residents, and it cannot be owned by another C Corp, S Corp, L.L.C., or partnership. As such, an S corporation is probably not an ideal option for foreign businesses.

       1.1.1           Foreign branch

Filing for authority to run a foreign corporation in New York requires an Application of Authority. A foreign corporation is subject to Branch Profits Tax and Branch Interest taxes, which requires complicated bookkeeping. It should be simpler to incorporate within the United States rather than to operate as a foreign corporation.

1.2           L.L.C.

Are you a manager, executive, or "specialized knowledge" employed by a foreign business entity?
Have you been working abroad for at least one continuous year for the past three years?
Is your company abroad related to the U.S. business you will establish? Will the foreign entity continue to do business?
Will you be coming to the United States to open a new office location for your company?
- U.S. Citizen and Immigration Services: L-1 Visa

The employer must file a Form 1-129, with fee, on behalf of the employee. Spouses and unmarried children under 21 of an L-1 employee may apply for an L-2 visa.

    2.1           Requirement 1: The petitioning U.S. entity should have a qualified relationship with your entity abroad.

The new U.S. office must have a corporate relationship with your foreign entity abroad where you have been employed as a manager, executive, or worker with specialized knowledge. This means that the new U.S. office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control.

2.1.1           Evidence

· Any other evidence demonstrating ownership and control over the U.S. and foreign entities (i.e., stock purchase agreements, voting rights agreements, capitalization table, term sheet)

2.1.2           Subsidiary

A subsidiary is an entity of which a parent owns, directly or indirectly, half or more of the entity and controls the entity. This includes 50-50 joint ventures that have equal control and veto power, as well as parent companies that own less than half the entity but in fact controls the entity.

2.1.3           Demonstrating time abroad in a qualifying capacity

To show that your overseas employment was in a qualifying capacity, USCIS suggests submitting evidence such as organization charts showing your position, patents or other evidence that the company's products are based on your work, performance reviews, loans/financing on behalf of the company, organizational job descriptions, and a resume describing your job accomplishments. This is not an exclusive list.

2.2           Requirement 2: Sufficient physical space must be secured for a new office.

If you re filing for a new office, provide a copy of a business plan or executive summary that shows the size of the U.S. investment and your ability to commence doing business in the United States.

       2.2.1           Evidence

In addition to evidence showing you have secured a physical premise, explain how this location is sufficient for your business.

2.3           Requirement 3: A new office must be active and operating within one year after the L-1's admission to the United States if requesting an extension of stay.

What makes an office active and operating will differ depending on the nature of the business. Typically it will involve factors such as hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable.

2.4           Requirement 4: After 1 year the new office must support a managerial or executive position if you are requesting an extension of stay in the L-1A classification.

After one year, the manager or executive is expected to be functioning as a manager or executive. If the manager or executive is still in a position where they are required to handle "hands-on" matters themselves, this requirement is probably not met. The manager or executive should be focusing on their managerial and executive tasks.

2.4.1           Evidence