As a New York state lawyer practicing in the area of U.S. immigration law, my primary purpose is to bring money and jobs into the United States.

My clients are typically businessmen or professionals from foreign countries seeking legal assistance to permit them to manage their business expansion into the United States. They desire to manage their investment either personally or through use of key executive, managerial or technical personnel. These clients require legal services to assist them in structuring their business expansion - not only to satisfy the strict categories of U.S. immigration law, but also to suit the international business structure they have created and not damage their international tax planning.

To move or not to move

One of the first inquiries involves determining whether or not the small-business owner plans to move personally into the United States on a long-term basis. If this person desires a long-term move into the United States with the long-term desire to become a U.S. permanent resident or citizen, she or he must be informed of the tax consequences of such a move and must determine whether the tax consequences of becoming a permanent resident or citizen will disrupt this individual's tax planning in his/her home country.

It is amazing how many people decide not to become U.S. permanent residents because of the disadvantageous tax consequences of that status, such as taxation on worldwide income and U.S. estate taxation. U.S. immigration law has enough nonimmigrant categories that a person does not need to reach a decision on this question until after the business has been successfully established in the United States.

Business structure

Most, if not all states, now permit the formation of limited liability partnerships and limited liability companies. These entities are not recognized by every country or province.

Before utilizing that type of business structure in the United States, there should be assurance that it will be recognized in the client's home country. Having the U.S business entity treated as a regular partnership of sole proprietorship in the foreign country will defeat the main purpose of the business organization.

The issue of ownership of the business must also be carefully considered. Working closely with attorneys and accountants from other countries, our office will often structure a U.S. business entity's ownership through a foreign holding company to avoid automatic dissolution upon the death of a member and avoid or minimize U.S. estate taxes. It is important to include the client's home country professional advisors in the planning of the international business structure.

Tech transfer

The United States has very strict technology export laws. Despite what the papers print about India, the United States has proven to be a very attractive place to conduct advanced research. It has a highly educated population, low-cost energy and low-cost real estate.

Prior to permitting the foreign client to establish the business in the United States, there should be an examination to assure that the U.S. will permit export of the research procedures and technology developed by the U.S. entity to the parent's country or any other country. There should also be assurance that the key personnel from the foreign company are legally eligible to have access to this technology.

Just because the U.S. company is owned and funded by a foreign company does not mean the U.S. company has the right to export the technology it produces to the parent company or elsewhere in the world.

Criminal convictions

U.S. immigration law does not recognize foreign pardons of criminal activity. U.S. Customs and Border Protection officers frequently ask whether a person entering the country has been convicted of a crime. A Canadian pardon permits a Canadian to report that he or she has never been convicted of a crime.

At the border, it is a different situation. If the person in question does not volunteer the fact he had a criminal conviction for which he was pardoned, many officers consider the response to be a deliberate misrepresentation. The officer may then exercise an option to summarily exclude that person from the United States.

This process has no appeal procedure. It prohibits that individual from reapplying for admission to the United States for five years, and also requires a nonimmigrant waiver for readmittance.

The consequence of not knowing this aspect of U.S. law can cause havoc on a carefully planned U.S. immigration strategy. If the Canadian reveals the fact of the conviction and that he received a pardon for it, the U.S. Customs and Border Protection officer will inquire into the nature of the conviction to determine whether it renders this person admissible or inadmissible to the United States. If the person is not admissible, the officer will not summarily exclude him or her, but will return the person to Canada with instructions about how to apply for a waiver to enter the United States.

There are many more aspects of expanding a business into the United States that require consideration of and reconciliation with the laws of a foreign country.

The practice of immigration law requires continuous evaluation and analysis of the nature of any transaction involving the United States and another country. Clients must work with their counsel to determine the different legal consequences of the transaction in both countries and assist the client in structuring and proceeding with the transaction to accomplish the business objective in accordance with the laws of both countries.

Kenneth Cohen is a partner and head of the immigration practice group at Kavinoky Cook LLP. He can be reached at kcohen@kavinoky.com.