Sindell Law Offices E-Min Newsletter (Vol. 3) - English Article #11

Question:

My sister and I want to start a restaurant. I am a permanent resident. My sister is an F-1 visa holder.  What kind of visa can she obtain? She has experience in food coordination and we can obtain experience letters to prove this.


Answer:

Starting a restaurant requires a substantial capital investment. Normally, renovations must be completed, a lease signed, sometimes the purchase of a liquor license is involved and marketing costs are usually substantial. If this restaurant will require a substantial investment, and normally, a restaurant does, your sister may be able to obtain an E-2 visa. In order to set up an E visa situation, the owner of the restaurant must be eligible for an E-2 visa as a Japanese national. I am assuming that both you and your sister are Japanese nationals. Since you are a permanent resident, if you owned more than 50% of the enterprise, the restaurant would not qualify as an E visa business. Therefore, either your sister or a third person, who is a Japanese national (or Japanese company) would have to be the majority owner of the restaurant. Once the ownership issue is solved, the investment in the restaurant would have to be deemed as substantial. The next issue would be whether your sister would qualify as a manager or person with specialized skills. If she is deemed to possess specialized skills or will be hired as a manager, she may qualify for E-2 status. There is no specific qualification as to the number of years she has to have in experience in the restaurant business or for that matter, managerial experience in general. However, since it appears that she has experience in food coordination, there could be an argument made that she has specialized skills, but it is up to the US CIS or the U.S. consulate to make a final determination. Because she is in F-1 status, she could change her status to the E visa status while in the United States by filing a form I-129 with the Texas or California service center. The other option would be for her to leave the country and apply in Japan or possibly in Mexico or Canada for a visa stamp which would allow her to re-enter in E visa status.

The other possibility may be an H-1b visa. Your sister would have to have a Bachelor's Degree in a major relating to the position and the position would have to require a Bachelor's Degree in that major. If she had a major in another area or less than a Bachelor's Degree, she may be able to show that she possesses the equivalent in experience. It is a difficult sell, but she could make the argument, if she has the requisite background, that she has the equivalent of a bachelor's degree in culinary arts, thus qualifying her for a job as a food services manager. Whether this would work would depend on the size of the restaurant, the amount of available work at the H-1b professional level, and whether the immigration service would agree that the position is a specialty occupation position.


If she has extraordinary ability in food coordination and is well known internationally, possibly an O-1 visa could be applied for. An L-1 visa would seem difficult since she is in F-1 here in the U.S. and I assume she has been here for awhile. Also, there seems to be no parent or subsidiary company involved in the facts presented and there is no indication that she worked for any parent or subsidiary company abroad.


My feeling is that the main problems to be encountered in this case are your sister's background and whether there is a substantial investment in the restaurant. If you can satisfy the criteria on both of these levels, I think that your sister has the possibility of obtaining some sort of non-immigrant work visa to work in your restaurant.