Orange County Treaty Visas Attorneys
E-1 Treaty Trader & E-2 Treaty Investor visas are non-immigrant visas that allow foreign nationals to invest in the U.S. The E-2 qualifying persons and their families can come to the U.S. to manage and control their investments. The U.S. business could be a start-up or an existing business. The Immigration Lawyers at Garg and Associates, PC are experienced immigration lawyers who can help you in filing applications to obtaining E-1 or E-2 visas from abroad or an E visa status if you are within the U.S.
The E visa category is an extremely useful means by which nationals from “treaty countries” can remain in the United Sates for an indefinite period, so long as they continues to control and manage their business. In addition, spouses and children under the age of 21 of the qualifying trader/investor are also permitted to remain in the U.S. Spouses of the principal traders/investors can obtain employment authorization during the period where the E visa is in effect. There is no restriction on the type of businesses that the foreign national may purchase or start-up. In other words, the business does not have to be in the same industry as the applicant’s business or experience abroad. The business could be a small company, such as a dry-cleaning store, or a multi-million dollar corporation, such as a luxury hotel.
The Long Beach Immigration Attorneys at Garg and Associates, PC are experienced immigration lawyers and have successfully filed dozens of E-1 Treaty Trader and E-2 Treaty Investor visas for clients from all over the world, including but not exclusive to clients from Germany, Great Britain, Japan, Pakistan, Sri Lanka, Bangladesh, Singapore, Taiwan, Korea, Thailand, and France, both in consulate processing abroad, as well as changing from one status to E-2 status while the applicant is in the U.S.
Unfortunately, nationals from China, India, and Vietnam may not be able to file E visas because these countries do not have trade and commerce treaties with the U.S. for E visa qualifications. However, they may still be able to invest in the United States and come to the U.S. under L-1 intra-company transferee visas. Garg and Associates has a 95% success rate on filing and processing successful E-2 Treaty Investor applications. Please contact us at Garg and Associates, PC for a consultation if you are thinking about investing in the U.S. We are serving Clients in Long Beach, Orange County, Irvine, Santa Ana, Westminster, Huntington Beach, San Pedro, Beverly Hills, Fountain View, New Port Beach, Seal Beach, Costa Mesa, Santa Monica, Carson, Torrance, Alhambra, Pasadena, San Fernando Valley, Los Angeles, Lakewood, Cerritos, Glendale, Venice Beach, and Hollywood.
Treaty Traders and Treaty Investors may apply for an E-2 visa in a U.S. Consulate or they can apply to change their status from a non-immigrant visa, such as a B-1 visitor visa for business, to an E-visa status if they are currently in the U.S. The difference between an E visa verses an E visa-status is that an E visa can only be obtained from a U.S. consular abroad. Although it is generally more time consuming, the E visa, which confers an actual visa stamp or a visa attached to the applicant’s passport, allows the foreign national to move back and forth from the home country and the U.S. to manage and control his/her businesses. On the other hand, the E visa-status in which a person applies to the USCIS for while they are in the U.S. confers the applicant the rights and privileges of an E visa holder, but the person does not have an actual visa. Thus, prior to leaving the U.S., the alien must obtain an approved advance parole so that the foreign national will not lose such status upon returning to the U.S. Usually the advance parole may only be obtained under emergency circumstances.
Initially, the U.S. Consulate usually issues a two-year E visa. After the initial two year period, the foreign national may file an application to continue such status. In some rare cases, the U.S. Consulate may issue an initial five-year E visa. However, at the end of this period, an E-2 visa status may be extended indefinitely so long as the underlying investment is in existence and the E-2 enterprise remains operational. In fact, the investor can even change from one industry to another or diversify its investment, as long as the qualifying enterprise (i.e. the underlying investment company) still exists.
Requirements for E Visas
- Treaty between the U.S. and the applicant’s country of nationality – A Friendship and Commerce Treaty or a Navigation and Commerce Treaty must exists between the foreign country and the U.S. To determine whether your country of nationality has a qualifying treaty with U.S, please click on “Treaty Countries.”
- The E visa applicant must be a national from a treaty country – The Immigration and Naturalization Act (INA) defines the term “national” as “a person owing permanent allegiance to a state.” Generally, presentation of a passport issued by one of the listed countries is sufficient in demonstrating an alien’s nationality.
- The company must be a “qualifying” enterprise under the treaty – The INA only requires that the qualifying alien would have to own at least 50% of the company to make it a qualifying enterprise. However, the INA also requires that the applicant controls and manages the company. Thus, to have control of the company, we often advise our clients to invest at least 51% of the qualifying corporation.
- Substantiality and At risk requirements – The applicant must demonstrate evidence of substantial investment in the U.S. and such investment must be “at risk”. This requirement has three components and they are as follow:
- “Investment” must be personal investment. Therefore, although an investment can be a loan, it must be a personal loan that the applicant will be personally liable for, in case the business fortunes reverse. Thus, a loan for the business enterprise in which the foreign national guaranties such loan may not be sufficient, depending on the language of the loan agreement and promissory note. Often, the simpler way to show personal liability would be to make the applicant the promissory of the note.
- The investment must be substantial to the qualifying business. “Substantial” investment is determined based on a proportionality test. People often confuse an E-2 Treaty Investor nonimmigrant visa with the EB-5 immigrant petition for international investor. Unlike the latter, an E-2 investment does not require $1,000,000. In fact, it does not require $500,000, $200,000, or $100,000. The State Department expresses its view that to be “substantial,” an investment amount must be large enough to have a good chance of resulting in a successful enterprise. Under the Matter of Walsh and Pollard, 20 I. & N. Dec. 60, 63 (BIA 1988), the Board of Immigration Appeals (BIA) held that substantial investment of $15,000 was sufficient for the business that the investors sought to start. In practice, it is advised that the investor contributes at least $50,000 of personal funds if the applicant is applying through USCIS in the U.S. to show “substantiality.” For consular processing abroad, we advise our clients to invest at least $75,000 or more.
- The investment must be “at risk” and is not be passive – Although there is no actual definition, “at risk” requires that significant actions have occurred at the time of filing to show potential business loss and that the funds are irrevocably committed to the investment (i.e. the investment must be “active” and not “passive”). Although an investor can usually show that the funds are at risk by purchasing an existing business, Garg and Associates, PC has assisted numerous clients in meeting this requirement in starting a new business, even if the applicant is still living abroad. Please contact one of our experienced immigration attorneys for more details.
- The Qualifying Investor Must Have Control And Management of His Investments – As briefly stated above, the State Department determined that to qualify as a Treaty Trader or Treaty Investor coming to the U.S. to “develop and direct” an investment enterprise, a applicant should have a controlling interest in the enterprise. In the past, an interest of 50 percent or less was considered inadequate to demonstrate control. More recently, however, consideration has been given to the ability of 50 percent owners to control the direction of an enterprise by veto power. Both The Consular and State Department proposed regulations state that 50 percent ownership of an enterprise, or de facto control based on voting rights, can satisfy the controlling interest requirement. As stated previously, as a precaution, it is advised that the applicant shows 51% interest in the qualifying enterprise to show that he or she has management and control of such business enterprise.
- Intent To Depart – Unlike some other non-immigrant categories, E non-immigrants do not need to have a residence outside the U.S. to show that they have no intention of abandoning. Also, unlike most other non-immigrant categories, E non-immigrants do not need to show that they are coming to the U.S. for a specific period of time. However, E visas are non-immigrant visas. Thus, the applicant must state that he or she intents to depart once his/her E-2 terminates. That is, the alien must state that he or she intends to leave the U.S. should their status end (i.e the qualifying investment ceases to exists).
Advantages of E-1 Treaty Trader Visas and E-2 Treaty Investor Visas
One of the advantages of an E-2 Visa is that the qualifying applicant and their families can remain in the U.S. indefinitely, so long as they maintain their status requirements. One Recent legislations also allows spouses of the qualifying aliens to obtain a work permits and work for any employer, including the qualifying company if they so choose. Because the Friendship and Commerce Treaty and the Navigation and Commerce Treaty require the U.S. to treat E-2 treaty investors as its own citizens, the E-2 investors can obtain all required permits to operate their businesses. For this same reason, children accompanying E-2 investors can attend U.S. schools (including public schools) at in-state resident rates (1/3 less than foreign student rates). Lastly, and probably most importantly, if the foreign nationals qualify certain criteria, the experienced immigration attorneys at Garg and Associates, PC can file an application for the qualifying company to sponsor the foreign investors and become U.S. permanent residents (obtain a green card).
NOTE: This is an important aspect of E Treaty Visas with which most immigration attorneys are not aware. Please contact the experienced attorneys at Garg and Associates, PC for a detailed consultation.
Please contact Garg and Associates, PC, Orange County treaty visas attorneys, for a personal consultation on your immigration matters. Learn more about our other Areas of Practice.