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E-1 and E-2 Visas
for Traders & Investors
AVI FRIEDMAN, ESQ.
Senior Attorney Wolfsdorf Rosenthal LLP
[email protected]
WWW.WOLFSDORF.COM
© 2015 Wolfsdorf Immigration Law Group (all rights reserved)
The contents of this document are proprietary and should not be duplicated or shared without express permission from Wolfsdorf Rosenthal LLP.
This presentation does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration‐related guidance is needed.
1
What is an E-1/E-2 Visa?
There are two classes of non-immigrant visas based on the
existence of treaty relationships between the United States
and other countries. INA Sec. 101(a)(15)(E); (9 FAM 41.51).
•E-1 (“Treaty Traders”): persons carrying on substantial
trade, including trade in services or technology, principally
between the United States and the treaty country.
•E-2 (“Treaty Investors”): persons coming to develop and
direct the operations of an enterprise in which the national has
invested; or is in the process of investing a substantial amount
of capital.
E-1/E-2 Visa Requirements:
FOUR basic requirements:
•
•
•
•
Existence of a Treaty.
Nationality.
Substantial Trade (E-1) or Substantial
Investment (E-2).
Coming to work in a “qualifying capacity.”
Existence of a Treaty:
Applicant (individual/entity) seeking E-1/E-2 status
must be a national of a foreign country with which
the U.S. has one of the following:
- Treaty of Friendship, Commerce and Navigation
(“FCN”)
- Comparable Bilateral Investment Treaty (“BIT”)
- Other Multilateral trade agreement, e.g. NAFTA
Nationality
Applicant seeking E-1/E-2 status must hold
the nationality of the treaty country.
• Nationality is determined by the laws of the
treaty country and generally accompanies
citizenship.
E-1/E-2 Country List
• To find countries that have treaties with the
United States, for E-1/E-2 purposes see
- 9 FAM 41.51 Exhibit 1 available
online at:
http://www.state.gov/documents/organizati
on/87221.pdf
Substantial Trade
for the E-1 Visa
•
•
•
•
•
The international trade must be "substantial" in the sense that there
is a sizable and continuing volume of trade;
The trade must be principally between the U.S. and the treaty
country, which is defined to mean that more than 50 percent of the
international trade involved must be between the U.S. and the
country of the applicant's nationality;
Volume qualifies more than value.
Trade must be in existence, in progress not in theory.
Trade must include goods or services exchanged in the international
market.
Substantial Investment
for the E-2 Visa
• The investor must have control of the funds, and the
investment must be at risk in the commercial sense;
• Investor must have received the funds from a
legitimate source
• The investment must be a real operating enterprise;
• The investment must be substantial;
• The investment may not be marginal.
Investment or In Process of Investing
•
Investor must have received funds from a legitimate
source:
Where are the investment funds originating?
• Investor must control the funds
• Investment must be “at risk”
– Must be an element of risk of losing the funds. (9
FAM 41.51 N10.2).
Investment must be a real operating enterprise
• The enterprise must be actual and exist.
• Not just on paper
Investment must be substantial
• The specific minimum amount involved is
determined by the proportionality test.
• The investment must be substantial in proportion
to the total cost of the U.S. enterprise.
• The investment should be sufficient to ensure the
operation of the U.S. enterprise.
Investment may not be marginal
• Does the income from the U.S. enterprise
exceed the amount required to support himself
and his family?
• What is the capacity of the U.S. enterprise to
promote the economy of the United States and
to create jobs for U.S. workers?
The applicant must be in a position to "develop
and direct” the enterprise.
• The owner or company that owns the U.S.
enterprise must demonstrate that it will
develop and direct the enterprise
When The Applicant Is Not The Treaty Investor
• He or she must be employed in a supervisory, executive, or
highly specialized skill capacity. Ordinary skilled and
unskilled workers do not qualify.
• To qualify as a treaty employee, the employer must have the
nationality of the treaty country.
•
Or if the US enterprise is owned by a foreign corporation, the
foreign corporation must have at least 50% of the treaty
country nationality.
• Employer and employee must have the same nationality.
• Employer must be maintaining E status in the United States
Working in a “Qualifying Capacity”
•
The applicant must be employed in a
supervisory or executive capacity.
•
Or possess highly specialized skills essential
to the efficient operation of the firm.
Ordinary skilled or unskilled workers do not
qualify.
Applicant must have the intent to return to his home
country at the expiration of his E visa.
• The applicant does not have to prove that he is traveling to the
United States for a specific period of time.
• Applicant could even sell his residence to move to the United
States and still qualify for E visa.
• The unequivocal statement that the applicant intends to return
to his home country at the expiration of his visa should be
sufficient to satisfy this requirement.
Procedure
If a Treaty Trader or Treaty Investor is present in the
United States, in legal status, can apply for E status in
two ways:
•
Change of Status from Business Visa (B-1) to E-1 or E2 status
–
•
Filed with USCIS
Or the applicant may apply directly at a U.S. Consular
Post. This is a common procedure because investors
need to travel frequently.
Change of Status from Business Visa
(B-1) to E-1 or E-2 status
• If the applicant opts for a change of status in the
United States, file a nonimmigrant petition with
supporting documents with USCIS.
• It takes 2-5 months to obtain an adjudication from
USCIS,
– premium processing available for extra $1,225
• 15 day adjudication
• If the USCIS approves the petition, the treaty trader or
investor may stay during the period of authorized stay,
usually two years, in the United States, directing their
U.S. enterprise.
Apply directly at a U.S. Consular Post
•
•
Schedule an appointment
Submit File for Review (electronic/courier/inperson)
Appear in person for an interview with a U.S.
consular officer
The E visa application is reviewed de Novo by the
U.S. consul even if there is an approved petition
from USCIS.
It is common for consular officers to review the E
visa package for a couple of weeks/months,
depending on the post, to
•
•
•
–
They review the supporting documents and determine
eligibility.
Reciprocity Schedule
• E visas are issued with a validity period based on
reciprocity.
– http://travel.state.gov/content/visas/english/fees/reciprocityby-country.html/
• While DOS advises Consuls to issue E visas based on
reciprocity, they have discretion and can issue for a
shorter validity
Is TCN Processing an Option?
Consular Posts in Mexico accept E-1/E-2
visa renewal applications from most third
country nationals (TCNs)
- Requires ASC appointment for
Biometrics and submission of Application
Recap: Status vs.Visa
STATUS
• Can apply for two year
status with USCIS.
• If applicant wants to
travel outside the United
States – need to apply for
a visa at a consular post.
VISA
• Issued for up to five years
via consular processing at
post (depending on
reciprocity schedule –
• On arrival - granted
admission for two years,
regardless of length of E
visa, by CBP.
General Issues Spouses of E-1/E-2 visa holders:
• Authorized to work.
• May obtain an employment authorization
document (EAD) by filing with USCIS.
• Children of E-1/E-2 visa holders can attend
school but are NOT eligible for work
authorization.
Intention to Depart:
• There must be intent to depart on termination of E
status.
But:
• Applicant need not intend to be in the United States for
a specific temporary period and not required to
maintain a foreign residence that does not intend to
abandon.
• Normally – mere statement of unequivocal intent to
leave following termination of status is sufficient to
satisfy intent to depart requirement;
Investor Green Card Options
• EB‐5
– Million Dollar Investor Green Card
– May be able to leverage E‐2 investment into EB‐5.
– $500,000 in area of high unemployment
• Must create 10 jobs
• EB‐5 Regional Programs
– $500,000 in pre‐approved program
– Pooled investment
Comparing Options for the
Entrepreneur
E‐2
L‐1
Regional Center EB‐5
Direct EB‐5
Amount of investment
Any amount, Any amount
but usually over $100,000
Usually $500,000
$500,000 or $1,000,000
Must create jobs?
Can be small
Can be small
10 direct or indirect jobs
10 direct jobs
Investors’ employment
Manager or essential skills, unless investor
Manager or specialized knowledge
Limited partner
Policy making
Timing
1‐2 months or more
Can be <15 business days with premium processing
Approximately 18 to 24 months
Approximately 12 to 18 months
26
Comparing Options for the
Entrepreneur
E‐2
L‐1
•(cont’d
)
Regional Center EB‐5
Direct EB‐5
Procedure
Can be direct to CIS 1st, unless blanket
consular post or USCIS
CIS, then consular post or I‐485
CIS, then consular post or I‐485
Can your spouse work?
Yes
Yes
3 months after I‐485
3 months after I‐485
Permanent residence
Can be EB‐1 after 1 year
Can be EB‐1 after 1 year
Start now
Start now
Yes
In‐state tuition sooner
In‐state tuition sooner
Yes
Can family / investor attend school?
27
Comparing Options for the
Entrepreneur
•(cont’d
)
E‐2
L‐1
Regional Center EB‐5
Direct EB‐5
Immediate
Immediate
2 to 3 months after I‐485
2 to 3 month after I‐485
Can investment Can be issue
be a gift?
Yes
Yes
Yes
Can investment Enterprise funds be a cannot be collateral
loan?
Yes
Enterprise cannot be collateral
Enterprise cannot be collateral
Expedite
Premium process
No
No
Employment authorization
premium process if filed with USCIS
28
Comparing Options for the
Entrepreneur
•(cont’d
)
E‐2
L‐1
Regional Center EB‐5
Relevance of country
Only treaty country
Not relevant
Source and Source and tracing of funds tracing of funds issue
issue
Necessity of overseas company
No
Yes
No
No
Buying existing Ok
company
Ok
No
Must add 10 jobs
Geographical area
Any
Rural/high Rural/high unemployment unemployment for $500,000
for $500,000
Any
Direct EB‐5
29
Comparing Options for the
Entrepreneur
•(cont’d
)
E‐2
L‐1
Regional Center EB‐5
Direct EB‐5
No
Yes, 1 year
No
No
Initial length of Up to 5 years
visa
1 year start‐up
2 year conditional permanent residence, then permanent residence
2 year conditional permanent residence, then permanent residence
Maximum period
5 or 7 years
Permanent
Permanent
Prior employment overseas required?
Unlimited extensions available
30
31
Q & A
Wolfsdorf Rosenthal LLP
For follow‐up questions:
Avi Friedman, Esq.
Email: [email protected]
1‐800‐VISA‐LAW
www.wolfsdorf.com 1‐310‐570‐4088 x249
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•This presentation does not constitute direct legal advice and is for informational purposes only. The
information provided should never replace informed counsel when specific immigration-related guidance is
needed.