It is impossible to work on American territory without a visa adapted to your situation.

A / Le visa L1 : “intracompany transfer visas”

It is a visa issued for a person transferred within a subsidiary or branch
American. This visa is issued for a period of 3 years and is renewable for a period
of 4 years. It makes it easier to obtain the Green Card than other visas.

It also allows the spouse and children of the L1 visa holder to be allocated
automatically an L2 visa which allows them to study in the USA.

There are three cumulative conditions for granting this visa: the applicant must have worked for one year with the French parent company during the last three years preceding the visa application, the parent company must hold at least 51% shares of the subsidiary and finally and the applicant must occupy management or senior executive positions in the United States.

The INS Local requires a certain number of documents, namely:

1. The articles of association, shareholders' agreements and share certificates of the parent company and the subsidiary.
2. Proof of the manager's functions of the person concerned
3. Proof of the financial capacity of the American subsidiary to compensate its employees
4. The parent company's balance sheet
5. Document I-129 approved by the INS
6. Proof that the employee in question has worked one year in the last three years for the parent company. The American company must then file with the local INS (that of the head office of the subsidiary) an application for admission to the United States on behalf of the employee.

This authorization is materialized by the delivery of document I-129; The interested party must then send all the documents to the American consulate in France to obtain his visa.

The disadvantage of this type of visa is that it takes longer than
for an E visa it usually takes 3 to 4 months; in case of emergency it is possible
to obtain a visa in fifteen days on condition of paying an additional sum of 1000
dollars (premium processing).

B / The E visa There are two types of E visa: the E1 “treaty trader” visa and the E2 “treaty investor” visa.

These visas are issued to people who come to the United States to exercise an activity
international trade between his country of origin and the United States.

French nationals have the establishment agreement dated November 25
1959 between the USA and France.

The E1 visa is granted to people who represent a foreign company in the USA, of which 50% commercial activities are carried out with American companies.

This visa is granted for an unlimited number of years, (it is adire as long as the
American company justifies a significant commercial activity with France) and allows
the spouse to stay in the United States and the children to go to school. It concerns
small and medium enterprises.

The E2 visa is granted to people who will create a business in the United States.
United and who will invest a minimum of $ 250,000.

This visa lasts as long as the activity of the American company.

The documents to be provided in addition to the passport are as follows: The articles of association of the company
American, meeting reports, share certificates and proof of activity
important commercial: Invoices, orders, contract, bank account. This visa is
advantageous because its delivery is much faster since the request is made
only at the American consulate in France.

On the other hand, it would appear more difficult to obtain the green card via the E visa because there is a
number of E visa granted each year. These quotas do not exist for L1 visas
which, if the documents are correctly assembled, will be issued automatically.

Finally for people with particularly high professional qualifications
highly qualified, the American employer will need to apply for an H or O visa depending on the
situation of interest. The candidate will be authorized to stay in the United States for a period
necessary to perform these specific functions.

The American immigration legislation is very tightly regulated, it is necessary to
provide the required visa because otherwise the sanction of expulsion from the territory would be immediate.

I. Definition

International double taxation of income or property has its origin in the full fiscal sovereignty of the States, each of which has full discretion to exercise their right to tax,

1. one because it considers itself the state of residence of the income recipient and
2. the other because he believes that this income has its source in his territory.

Such a situation can arise schematically in the following two cases. A person is a tax resident of France and a US tax resident if:

1. she has a Green Card or
2. she spends more than 183 days on American territory.

Likewise, a person who is a resident of a state and receives income from another state risks being taxed in the state of the source because the income arises in this territory and in the state of the residence because the beneficiary is domiciled there.

II. The tax treaty in France of August 31, 1994

The subject of the tax convention of August 31, 1994 on the income tax of
people and companies is to avoid these double taxation in France and the United States.

The convention provides that a person cannot be simultaneously a tax resident of France and the United States.

She is considered a resident of the state with which her personal and economic ties are closest.

Therefore :

1. people domiciled in France are subject to tax on all their income (from French or foreign sources),
2. people whose tax domicile is located in the United States are subject to tax in France on their income from French sources only.

With regard to the provisions of the agreement, the following are considered to be tax residents of France:

1. people who have their main home or place of residence in France,
2. those who exercise a paid or self-employed professional activity in France,
3. those who have the center of their economic interests in France or,
4. state agents who exercise their functions
5. State agents who exercise their functions entrusted with missions in a foreign country and not subject in this country to a personal tax on all their income)

Thus, this convention encourages French investments in the United States by granting
to nationals of both states a more favorable regime than that to which
nationals of third countries.

The choice of the social form depends on the objectives of each.

It could be :

1. a Corporation (SA),
2. a Partnership (Civil Society) or
3. a Limited Liability Company (SARL).

I. THE CORPORATION (SA)

The articles of incorporation of the Corporation contain only the basic elements of society, namely:

1. the name of the company,
2. the duration of the company (limited or perpetual),
3. the corporate purpose of the company,
4. the number of shares that can be issued
5. the address of the head office
6. contact details for its legal representative.

The incorporation certificate is the only public document attesting to the incorporation of the company.

L’article 102 du Revised Model Business Corporation Act soumet les articles of incorporation.

The By-Laws determine the rules governing the internal functioning of the company.

Generally, the address of the registered office appears there.

The procedures for shareholders' meetings, the rules concerning directors, the procedure for amending by-laws, the rules concerning the allocation of dividends.

Unlike our French SA, the corporation does not require a minimum capital and can have an indefinite lifespan.

In addition to our SA, the Corporation:

1. is responsible for his debts
2. shareholders' liability is limited to their contributions.

Unlike LLC which is not subject to corporate tax,
the Corporation is taxed on its income and each shareholder is taxed on the dividends received.

Decisions are taken by the directors on the board of directors.

Shareholders :

1. can vote on significant changes affecting society
2. may elect and remove members of the board of directors
3. but cannot act on behalf of the company for daily management.

II. PARTNERSHIP

There are two types of Partnership (section 620 of the laws of Florida):

1. The General Partnership whose formation is contractual, it is close to the general partnership in France
2. The Limited Partnership requires registration; he is getting closer to the French limited partnership.

At least two partners are required whose liability is unlimited; profits are taxed at the level of each partner.

The Partnership simply completes an informal tax return and the partners must individually declare income, deductions and credit in proportion to their rights in the capital.

Each General Partner has the power to initiate the Partnership and has a voice and decisions concerning the Partnership are taken collectively.

Limited partners cannot intervene in the active management of the Partnership (they are in the same position as the shareholders of the Corporation but without management power).

III. THE LIMITED LIABILITY COMPANY

The officers of the LLC are appointed by operating agreements.

The corporate form is based on the principles of fiscal transparency and limited liability,

If no agreement is reached, management is devolved to all the partners according to their contribution to the capital.

CONCLUSION

Most foreign investors opt for the Corporation to do business in the United States; the incorporation formalities are much simpler than in France and only require a few weeks to be completed.

Florida's tax system also has many advantages to consider when incorporating

Lire l’article “ Investing in the United States: the advantages of Florida “

Introduction: The rule of law in 2011

Some critics of the nationalist provisions of our civil law spread the rumor that the privilege of jurisdiction under articles 14 and 15 of the Civil Code has fallen into disuse and that it is no longer part of positive law.

However, it is not.

Prieur jurisprudence

1. only qualifies this exclusive title of competence into optional competence.
   The privilege of jurisdiction remains effective in extra-community relations as can be seen in a recent judgment of the Paris Court of Appeal of February 3, 2011 (1).
2. The Court retains the jurisdiction of the French courts solely on the basis of article 14 of the Civil Code to know of an action brought against an American company for the purpose of paying damages due to the abusive proceedings initiated in the United States (2).
   According to the Court, the fact that a French party defends itself before the American court does not constitute a waiver of the privilege of jurisdiction of article 14 of the Civil Code.

However, as a precaution, the French defendant who intends to resist the execution
of a decision made against him in the USA will be well advised not to submit without
reservations to an American investigation procedure.

The French exequatur procedure differs according to whether one is in the presence of a common law exequatur, that is to say outside any international convention or a simplified exequatur on request governed by the right of the European Union.

In the ordinary law procedure, articles 14 and 15 of the Civil Code constitute an effective defense.

This defense only exists at European level in civil and commercial matters which are excluded from the scope of Regulation No. 44-2001 known as Brussels I (3).

The American procedure does not experience the same obstacle to the enforcement of foreign judgments, because there is no equivalent to articles 14 and 15 of the Civil Code in American procedural law.

However, there is a defense which can be effective depending on the circumstances, based on the lack of reciprocity in the country from which the decision originates, the enforcement of which is required in the United States.

However, the argument could succeed before the American courts, that an American judgment pronounced against a French would not be honored in France, because of the defendant's refusal to submit to American jurisdiction by the invocation of his privilege of jurisdiction .

Consequently, in the absence of reciprocity, a French judgment condemning an American may not be exequatured in the United States.

This problem merits a comparison of the evolution of the two systems.

I. REMINDER OF THE RULES GOVERNING THE EXEQUATUR IN FRANCE

A) Exequatur of common law

Article 509 of the Code of Civil Procedure lays down the principle of the character
enforceable in France of foreign decisions subject to compliance with the rules
French laws.

It is a principle that the judge of the exequatur is never a judge of the merits, he therefore
not intended to retry the facts which gave rise to the judgment.

Since the Cornelissen case law (4), which restricts the conditions laid down by the previous case law (5), he must only ensure that:

1. the international jurisdiction of the foreign judge who rendered the decision,
2. the regularity of the procedure followed before the foreign jurisdiction but only in relation to French international public order and respect for the rights of the defense,
3. the absence of any fraud under French law.

The exequatur judge may make a partial or total exequatur of the judgment submitted to him.

A party may also request the French judge to find the impossibility of the possible enforcement of a foreign judgment in France for the breach of one of these criteria.

The interest consists in retaining the competence of the French judge, by avoiding the obstacles of the lis pendens and the authority of the thing judged by a foreign court.

Furthermore, the French defendant can rely on Articles 14 and 15 of the Civil Code, to oppose the enforcement of the foreign judgment, provided that he has not given up raising this plea, by appearing voluntarily in the foreign proceedings.

B) Exequatur within the European Union

In the presence of a request for the enforcement of a judgment emanating from a court of a Member State of the European Union, it is the Brussels I Regulation, replacing the Brussels and Lugano Conventions, which applies for civil and commercial matters.

Article 3 rules out the application of articles 14 and 15 of the Civil Code (for France or equivalent abroad) between nationals of the signatory states.

Nevertheless, the privilege of jurisdiction is still relevant in its matters not covered by the Regulation (fiscal, customs and administrative matters) and those excluded from its scope, namely:

1. the status and capacity of natural persons, matrimonial property regimes, wills and successions;
2. bankruptcies, composition and other similar collective proceedings;
3. social security matters;
4. arbitral awards.

For these matters applies the common law of exequatur, with the exception of
arbitral awards that follow a specific procedure.

So that the exequatur procedure is successful and therefore that the judgment for which the exequatur is requested can be executed in the desired country, it is necessary to ensure that the following conditions are met upon the introduction of the main procedure leading to upon obtaining judgment:

1. Scrupulously respect the public order of the State in which the judgment is sought as well as the public order of the State where the enforcement will be sought;
2. Have the defendant initiate the proceeding, regularly and in good time and keep the proof in the file;
3. Ensure that the judgment is not irreconcilable with a decision rendered between the same parties in the State in which enforcement is sought or in another State in a dispute having the same object and the same cause;
4. Ensure that the defendant, in civil and bankruptcy matters, who does not fall within the scope of the Regulation, defended himself without raising the privilege of jurisdiction.

Once verified that these conditions are met, it is necessary to follow the simplified procedure of articles 38 and following of the Brussels I Regulation:

1. The request for exequatur must be made on request presented to the President of the Court of First Instance of the domicile of the party against whom the execution is requested, and failing this the place of execution which must be indicated in the request.
2. The President rules promptly, without observations being able to be presented by the party against whom enforcement is requested.
3. A decision is rendered on motion subject to appeal. The procedure then becomes contradictory and the decision of the Court of Appeal is likely to be appealed in cassation.

II. THE EXECUTIVE OF A FRENCH JUDGMENT IN THE UNITED STATES

There is no convention on the enforcement of judgments between France and the United States.

However, the American jurisdictions easily grant exequatur to French judgments especially when it is a judgment bearing condemnation on sums of money.

Indeed, the Uniform Foreign Money Judgments Recognition Act (6) was adopted in many American states, and even in those which did not adopt it, the courts generally apply this procedure. simplified exequatur similar to that of the Brussels I Regulation.

The simplified exequatur (domestication of foreign judgment) procedure consists of registering the foreign judgment with the registry of the competent court and the notice of registration is served on the debtor, who then has a relatively short time limit for filing an opposition. In this case, a contradictory procedure opens where the judge verifies the following regularity conditions:

1.  The foreign judgment is final.
2.  The judgment was rendered by an impartial court or according to the requirements of the American Constitution for safeguarding individual freedoms (due process of law), it being presumed that all the requirements laid down by the constitution are not necessarily taken up by case law .
   Thus the argument that the foreign lawsuit was not subjected to a jury, whereas the American Constitution makes a fundamental right of it, cannot succeed (7).
3. The foreign court had jurisdiction over the defendant.
4. The defendant was informed of the foreign judgment proceedings within a reasonable time to enable him to be able to defend himself.
5. The judgment was not obtained by fraud.
6.  The subject-matter of the legal action or of the claim for compensation for the damage on which the judgment is based are in accordance with the public policy of the State.
7.  The judgment does not conflict with any other final judgment.
8.  The foreign court which rendered the judgment would recognize a similar decision rendered in the state where enforcement is sought.

In practice, it will be necessary to produce in support of the factum in demand.
of exequatur, a customary certificate (affidavit) issued by a lawyer for the
jurisdiction of the country which rendered the decision to be enforced, being able to attest that the said
validity conditions are met.

This last point of reciprocity was put down by the United States Supreme Court as one of the principles of "Comity" (8).

This is no longer required in most states, so it is often easier for a successful litigant to have a judgment obtained in his country recognized in the United States, than on the contrary for a party. winner of having a judgment obtained in the United States enforced abroad.

However, there remains the problem mentioned above of non-reciprocity with regard to articles 14 and 15 of the French Civil Code.

It should be noted that French correctional judgments containing civil convictions against French citizens who have left to settle in the United States are regularly enforced in several American states. (9)

***

1. Cass. 1st civ., May 23, 2006, Prieur c / de Montenach: D. 2006, Chron. p.1846, note B. Audit.
2. CA Paris (1er ch.) February 3, 2011, SAS Surgiview c / Orthotec LLC.
3. Règlement du Conseil N°44-2001 en date du 22 décembre 2000 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale (JO L 12 du 16.1.2001, p. 1) , qui remplace les Conventions de Bruxelles et du Lugano.
4. Cass, civ, 1st, February 20, 2007 N ° 05-14.082, Cornelissen c / Sté Avianca INC. The Court abandoned the requirement of the application of the competent law according to French conflict rules to authorize exequatur.
5. Munzer judgment (Civ 1st, January 7, 1964 - JCP 1964 II 13590); Bachir stop, Cass. Civ. 1st October 4, 1967.
6. The Uniform Foreign Money Judgments Recognition Act has been approved by an Annual Conference meeting in its seventy-first year Monterey, California July 30 - August 4, 1962.
7. V. the judgment of the Supreme Court Hilton v / GUYOT of 1885 recognizing the validity with regard to the American rules of public order, of a judgment emanating from the Commercial Court of the Seine in matters of bankruptcy.
8. "Comity" is the deference that judges must show to decisions rendered by another court. It is courtesy, or even mutual recognition of administrative, legislative and judicial decisions. Dictionary of economic and legal English, Anne Deysine, Pocket Book, 1996 11
9. Gibsonia Invest v / Alexandre Byron Exarcos. Circuit Court of the 11th Judicial Circuit, Miami, Florida, March 30th, 1999.