Tax Basics for Foreigners

International investors and professionals choosing to invest in the United States need to plan in advance how their investments will be taxed by the U.S. Internal Revenue Service. Up front planning is paramount, and failure to do so could result in hundreds of thousands of dollars being paid to the U.S. government unnecessarily. In general, a non-resident should understand the basics regarding two taxes in the U.S.: income tax and inheritance tax as further explained below.

U.S. Income Tax

In general, non-residents are taxed on their income derived from U.S. sources. This would include dividends from U.S. stocks, rental income for a condo owned by the investor, and most clearly, wages earned from a U.S. employer while living in the U.S. on a work visa (such as an L-1A, H-B, or E-2 visa).

For U.S. assets that create income (stock dividends, rental income, etc.) the non-resident will need to declare such income on an annual return submitted to the IRS. The same is true for any wages earned from a U.S. employer while here on an employment visa. But what most investors may not know is that once one passes a certain number of days living in the U.S. the international investor must declare his or her entire world-wide income on the U.S. tax return.

The requirement to declare the investor’s world-wide income on a U.S. tax return, and therefore potentially pay taxes in the U.S. on such income, occurs when the non-resident meets the “substantial presence test.” The magic number is 183 days. If the non-resident lives in the U.S. for 183 days or more in the U.S. then his or her world-wide income must be declared. The 183 days are summed up by adding 100% of the current years’ days, 1/3 of last years’ days, and 1/6 or the days spent in the U.S. two years ago.

This may scare some, but rest assured that in general the international investor is not always going to be taxed twice. This is because the U.S. gives the investor a credit for the amount of tax payed in the country where the income was generated. So imagine that the investor is from Argentina, pays 20% on a certain type of income in Argentina on an argentine asset, and the similar tax in the U.S. would be 28%. In this example the investor pays the difference, i.e. 8% on his or her U.S. tax return.

There is more good news. If the investor is from a country that maintains a tax treaty with the U.S., there may be provisions in such treaty to eliminate the need for the investor to pay that 8% difference at all.

So counting your days spent in the U.S. is imperative. And if you are going to fall under the substantial presence test then plan in advance with your tax attorney and accountant to reap all of the tax benefits possible given your individual circumstances.

U.S. Inheritance Tax

If you are a non-resident, when you pass on typically you will only pay for inheritance tax on your U.S. situated assets. So if a non-resident is living and working in the U.S. on an E-2 visa and three years later the unthinkable occurs, he or she will likely not pay a tax to pass on assets owned, for example, in Europe.

But the non-resident’s U.S. assets will be subject to U.S. inheritance tax. Take a condo in New York for example, worth $1 million. Non-residents obtain an inheritance tax exemption of $60,000 on their U.S. assets, then the value above $60,000 is taxed at a scaled rate of up to 40%. So if the unthinkable happens, the family members of the investor will need to pay about $350,000 to the U.S. government.

This can be avoided in different ways, all of which require that the investor plan in advance with a knowledgable tax attorney and accountant who understand U.S. tax on foreigners. One way is for the New York condo to be owned by an offshore corporation. Another way is for the non-resident to title the condo in the name of a U.S. LLC, and title most of the LLC shares in his or her children’s names. Or the investor can have a low-cost U.S. life insurance policy that covers the amount of the tax imposed.

The tax rules for foreigners are more complex than described above, but the principles discussed in this article show that non-residents who chose to invest or live in the U.S. can avoid paying unnecessary taxes by working closely and in advance with their trusted tax counsel.

E Visa or L Visa? Why I Like the E Visa Better than the L-1A For Small Business Executives and Managers

There are many visa options for foreigners who would like to live and work in the United States. Simply put, the correct visa depends on the background of the person (education, experience, etc.) and the details of the U.S. company (who will own it, product and service offerings, number of expected employees in the U.S., etc.). But when the visa applicant is destined to an executive or manager position, the two main options are the E-visa and the L-1A visa.

The main difference between the E and L-1A visas is that to obtain the L-1A there must be an affiliate company abroad. For example, the U.S. company can be wholly owned by the foreign company, the foreign company can own the U.S. company, or the same owner(s) can own both companies. In addition, the visa applicant has to have worked at the affiliate abroad for at least one year within the previous three years before coming to the United States.

At this point in the analysis, either the client will have worked for an affiliate abroad or not. If he or she had worked abroad then both E and L-1A visas are on the table. If he or she is coming to start a new company in the U.S. and there is no foreign affiliate, then only the E visa will be on the table.

Many people rave at the benefits of the L-1A visa over the E visa. The main reason is that later the applicant can petition residency through the company and not have to deal with the Labor Cert (PERM) process. I admit that this is a significant benefit, but there are many more benefits to the E visa that in my opinion beat out the L-1A visa for small businesses time and time again. Here is why:

Benefit #1 – You don’t have to deal with USCIS

Some visas have to be petitioned first with United States Citizenship and Immigration Services (USCIS), also known as “Immigration”, and after an approval by USCIS the petition is sent to the U.S. embassy or consulate abroad for a second (and simple) approval by the U.S. Department of State (DOS). Therefore, there are two main steps in the process for visas like the L visa. However, when you petition an E visa, you can petition directly to the DOS at your closest U.S. embassy or consulate in your home country. So for the E visa the DOS is completing the main adjudication of your petition, and for an L-1A visa USCIS is completing the main adjudication.

I like dealing with the DOS better than USCIS. The main reason is that when you take a successful business person with a good business plan and put them in front of a DOS officer at the embassy or consulate, if the company has begun investing it becomes hard for the DOS officer to look that business person in the eyes and deny the E visa petition.

However, if you are petitioning an L-1A visa you don’t get the benefit of face to face interaction. In fact, you can’t even speak with the actual officer. It is basic human nature that it is easier to deny something when you don’t have to look the person that you are denying in the eyes. Therefore, the standards for passing a petition through USCIS seem to be higher in some cases.

Benefit #2 – It costs less

We all like to spend less, right? The E visa has a grand total of $270.00 in government fees, whereas the L-1A visa costs $2,240.00 in government fees. Simple mathematics. Also, remember that you will have to pay those same fees again in one year because a small business will only get their first L-1A for one year. So take that $2,240 and double it, and add my fees to that again too.

Benefit #3 – It lasts longer

The L-1A visa can only last a total of 7 years, whereas the E visa can last for the rest of your life as long as the company is in operation. You will have to renew it over the years but there is no general time limit.

Benefit #4 – It has a smaller employee requirement

This point is central for small businesses. For both visas the applicant must be an executive or manager. This means that the applicant should not be completing the day to day operational tasks of the U.S. company, like billing clients, shipping orders, etc. But USCIS’s standard for this, in my experience, is much higher than the DOS. What happens is you get the L-1A visa and you need to show that within one year you will have 3-5 employees, then three years from then you need to show 5-7 employees. But when you get the E visa, depending on the type of company, you can operate forever with 2-3 employees, and sometimes you only need one employee under the applicant! This all depends on the type of work, but suffice it to say that DOS is a bit more lax on the employee requirement.

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One part that I did not mention is that the E visa is only available for foreigners from certain countries (see http://travel.state.gov/content/visas/english/fees/treaty.html). So the basic analysis between the L-1A and E visa is: 1) are you from a country on the E treaty list?, and 2) do you have a company abroad?

From there the applicant really needs to decide what level of oversight he or she wants from the U.S. government on how they run their business. If you are going to have less employees, an E visa may be the right visa. If you are going to have more than 10 employees and want residency then the L-1A is probably better. But for my money the E visa is a great option even for people who would qualify for the L-1A due to the benefits mentioned above.

– John

E-2 Visa – What is a “Substantial Investment?”

In law there are many amorphous terms of art, such as the word “reasonable”… who should decide what is reasonable? In a courtroom judges and juries decide legal terms of art. In immigration, legal terms of art are decided by immigration judges, USCIS, and the U.S. Department of State (“DOS”).

When one applies for an E-2 investment visa, the applicant must prove that his or her investment is “substantial.” DOS is the branch that typically decides whether an E-2 visa investment is “substantial” or not.

So we are confronted with the question of what DOS thinks is a sufficiently “substantial” amount of money when an investor either is purchasing an existing company or starting a new company from the ground up. What do I think substantial means? Well, as a good attorney, my answer to you is “it depends.”

“It depends”, because my feeling is that “substantial” means the investment has to make sense from a business perspective. If your company idea is to start a new golf course, the investment will need to be in the millions of dollars. So don’t come to me with a business plan that shows that you can start a golf course with $500k. It doesn’t make sense. And I can tell you that DOS will consider a million dollar investment as “substantial.”

The harder cases when proving substantiality are for small investments. The rule of thumb that I use is not much less than $100,000. Can you get an E-2 approval on an investment of less than $100k? Yes you can, but its risky, and I don’t like risk. So if the investment is less than $100k, then I typically would have the investor put extra cash in the U.S. company’s bank account for reserve funds.

So imagine that a client is purchasing an existing company for $60k that has three employees. This would probably not be considered “substantial”. At any rate it is borderline, and so the recommendation would be for the client to put an extra $40k in the company bank account to be used for marketing, renovations, and other enhancements to the company.

Income is Key

An E visa for an investment of less than $100k is possible, but it is very risky. The reason that it is risky is because the investment has to be one that will produce enough income for the investor to live on while in the U.S. And if you can show me a company that can be purchased for $50k that will produce enough income to live on, please tell me about this magic investment!

All jokes aside, it really does depend on a case-by-case basis as to whether an investment will pass the E-2 standards. But in general, remember that the investment must: (1) make business sense, and (2) produce enough income for the investor to live on while in the U.S. If these two points are covered, you likely have a “substantial” investment.

-John