U.S. Immigration and Business

Travelling, relocating, investing or doing business in the United States can involve immigration, corporate and tax issues that should be considered together, particularly when the project also has connections with Spain.

At EBAN Abogados, we provide legal advice and coordination for individuals, professionals and businesses with interests between Spain and the United States.

Our involvement may range from a specific question concerning ESTA or a U.S. visa to the initial planning of a business project in the United States, company formation, obtaining tax identification numbers or coordinating tax and compliance obligations arising in both jurisdictions.

Where a particular matter requires a professional specifically licensed or specialised in the United States, we coordinate with U.S. lawyers, tax professionals and other local service providers, allowing the client to maintain a legal point of contact in Spain.

ESTA and Travel to the United States

Not every trip to the United States requires a visa.

Nationals of countries participating in the Visa Waiver Program, including Spain, may travel to the United States for certain temporary visits without first obtaining a visa, provided that they meet the requirements of the program and obtain the corresponding ESTA travel authorisation.

Spanish nationality does not, however, mean that ESTA is appropriate in every situation. The purpose and duration of the trip, previous travel and immigration history, and other personal circumstances may make a visa necessary.

It is also important to distinguish nationality from residence. Being legally resident in Spain does not in itself make a person eligible for ESTA. Eligibility for the Visa Waiver Program depends, among other requirements, on the traveller’s nationality.

U.S. Visas

Where a traveller is not eligible to use the Visa Waiver Program, or the proposed activity in the United States falls outside its scope, an appropriate U.S. visa may be required.

U.S. immigration law provides different visa categories according to the purpose and duration of the stay, including temporary visits, business activities, study, exchange programs, employment, investment and other circumstances.

The initial question should therefore not simply be “Which visa can I apply for?”, but rather what the person actually intends to do in the United States and which immigration category corresponds to that objective.

Selecting an inappropriate route can create difficulties both during the application process and subsequently when seeking admission to the United States.

Business Travel to the United States

Travelling to the United States for business purposes is not necessarily the same as travelling there to work.

Certain temporary activities, such as professional meetings, contractual negotiations, particular business consultations or attendance at conferences, may fall within the activities permitted for business visitors.

A distinction must nevertheless be made between permitted temporary business activities and employment or productive work in the United States.

Where the proposed activity goes beyond a temporary business visit, the appropriate immigration status should be considered before the activity begins.

Study, Employment and Investment in the United States

Longer-term projects require a different analysis from occasional tourism or business travel.

Studying in the United States, undertaking certain professional activities, working for a U.S. company, transferring personnel between related companies or pursuing particular investment projects may require a specific immigration category.

In these situations it is particularly important to consider the personal, professional and business aspects of the project together.

For example, investing in or establishing a U.S. company does not by itself create an automatic right to live or work in the United States. The corporate structure and the individual’s immigration position may be connected in certain projects, but they remain legally distinct issues.

Permanent Residence in the United States

Routes to permanent residence in the United States are governed by requirements different from those applicable to temporary visits and non-immigrant visas.

Depending on the circumstances, potential routes may arise through family relationships, employment, investment or other grounds recognised under U.S. immigration law.

The appropriate strategy must be assessed individually, particularly where the applicant continues to maintain residence, assets, professional activities or family interests in Spain.

For projects of this nature, we can analyse the client’s position from Spain and coordinate those aspects requiring specific professional involvement in the United States.

ESTA Denials, Criminal Records and U.S. Entry Issues

An ESTA denial or previous U.S. immigration difficulty should not simply be approached by submitting repeated applications without first understanding the underlying issue.

Certain criminal records, previous immigration incidents, periods of overstay, removals, visa refusals or other personal circumstances may affect a person’s ability to use ESTA, obtain a visa or enter the United States.

In these situations it is particularly important to establish what happened, what the relevant records actually show and what legal consequences may follow.

The multidisciplinary nature of EBAN Abogados can be particularly useful where a U.S. immigration issue arises from a criminal conviction or proceeding in Spain. We can analyse the underlying Spanish documentation and legal position before considering its potential immigration implications in the United States.

Setting Up a Company in the United States

The United States offers a wide range of structures for conducting business and generally permits foreign individuals and companies to own interests in U.S. entities, subject to the requirements applicable to the particular activity and structure.

Forming an entity may be relatively straightforward. Choosing the appropriate structure and understanding what happens after formation is a different matter.

Before establishing a company, it is advisable to determine who will own it, what activities it will conduct, where it will operate, where its owners are tax resident, what income it is expected to generate and how the U.S. entity will interact with Spain.

Our approach is therefore not limited to registering a company. The first question is whether the proposed structure is appropriate for the underlying project.

LLCs and Other U.S. Business Structures

The Limited Liability Company (LLC) is one of the best-known structures among foreign entrepreneurs establishing a presence in the United States, but it is not necessarily the appropriate solution in every case.

Its legal and tax treatment can depend on its ownership, tax classification and elections, the activities conducted and the circumstances of its owners.

Where the owner is tax resident in Spain, in particular, choosing a U.S. structure solely because it is inexpensive or easy to establish — or because it is widely recommended online — may produce unintended consequences.

The structure should also be considered from a Spanish perspective and with an understanding of how the two legal and tax systems interact.

Which State Should I Form a Company In?

Delaware, Wyoming, Florida and other States are frequently suggested to foreign entrepreneurs considering establishing a U.S. company.

However, there is no single State that is universally the best place to form a company.

The decision should reflect the nature of the business, its physical presence, customers, investors, ongoing costs, State-level obligations and the other circumstances of the project.

Forming an entity in one State does not necessarily prevent registration, tax or compliance obligations arising in another State where the company actually conducts business.

Obtaining an EIN

An Employer Identification Number (EIN) is the federal tax identification number used by many U.S. businesses and other entities.

It may be required for federal tax and administrative purposes and commonly arises in other aspects of establishing and operating a U.S. business.

EIN applications involving foreign-owned entities can present particular issues, especially where the owner does not have certain U.S. taxpayer identification numbers.

We can assess the documentation required and prepare or coordinate the EIN application as part of the establishment of the U.S. entity.

U.S. Tax and Reporting Obligations

Forming a U.S. company can create ongoing obligations that do not end once the entity has been registered.

Depending on the entity, its ownership and its activities, federal or State tax returns and information reporting requirements may arise even where a foreign owner considers that the company has conducted little or no business.

A particularly important example concerns certain single-member U.S. LLCs owned by foreign persons. Their U.S. tax classification can result in specific information-reporting obligations to the Internal Revenue Service (IRS).

Before establishing an entity, it is therefore advisable to understand the recurring obligations it may create and to determine who will be responsible for compliance.

Where appropriate, we coordinate these matters with professionals specialising in U.S. tax preparation and compliance.

FinCEN and Beneficial Ownership Reporting

U.S. corporate transparency requirements have undergone significant changes in recent years.

Under the current Corporate Transparency Act reporting regime, entities created in the United States are exempt from the requirement to report beneficial ownership information (BOI) to FinCEN.

Certain entities formed under the laws of another country and subsequently registered to do business in the United States may, however, remain subject to specific reporting requirements.

As these rules may change, the applicable requirements should be checked under the rules in force when an entity is formed or registered.

Spain–U.S. Tax Coordination

For a person resident in Spain, complying with U.S. requirements is only one part of the analysis.

Ownership of a U.S. company, income arising in the United States, investments or assets located in both countries may also have tax consequences in Spain.

Where a genuine connection exists between the two countries, it is preferable to avoid two entirely separate analyses that overlook the consequences a decision taken in one jurisdiction may produce in the other.

Our objective is to provide a coordinated Spain–U.S. perspective, involving U.S. specialists where their expertise or professional status is required.

Coordination with U.S. Professionals

An international matter does not require every service to be provided by the same professional.

Depending on the project, U.S. attorneys, tax professionals, tax preparers, accountants, registered agents or other specialised providers may need to become involved.

In these circumstances, EBAN Abogados can act as a coordinating point from Spain, providing the U.S. professional with the relevant Spanish legal or documentary information and helping the client understand how the different elements fit together.

This approach can be particularly useful for clients who do not require a permanent professional structure in the United States but need access to the appropriate specialists when a particular issue arises.

EBAN and Our U.S.-Related Practice

The relationship between EBAN Abogados and the United States is not limited to processing a particular visa or establishing a company.

Our approach reflects an increasingly common reality: individuals living in Spain while conducting activities in the United States, entrepreneurs operating between both countries, families whose members live in different jurisdictions and professionals requiring legal solutions on both sides of the Atlantic.

This international orientation is also developed through EBAN Legal and USResidence, projects connected with our work and presence in matters involving the United States.

We do not seek to replace U.S. professionals where their involvement is required. Our role is to understand the project from the Spanish side, handle directly those matters falling within our professional scope and coordinate the necessary expertise when a matter crosses both jurisdictions.

U.S. Legal and Business Matters from Spain

At EBAN Abogados, we can assess matters involving ESTA and travel, U.S. visas, immigration projects, company formation, EIN applications, taxation and other issues arising from activities conducted between Spain and the United States.

The first step is to determine what the client actually needs. In some cases, a specific question can be resolved directly. In others, several immigration, corporate, tax or legal matters may need to be coordinated.

Initial consultations are free of charge. Where the matter requires a specialised U.S. professional, we can coordinate their involvement as part of the project.

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Between Spain and the United States, an immigration decision can have business consequences, and a business decision can have tax consequences. Our role is to consider the project as a whole.

EBAN Abogados
Spain · United States · Immigration · Business · International Tax