Creating jobs and strengthening the U.S. economy through the E Visa
By Giselle Carson, Esq.
As a result of our tight labor market and the entrepreneurial spirit of many foreign nationals, we are seeing an increase in the usage of E visas granted to skilled and talented foreign entrepreneurs to come and work in the U.S.
This article will focus on the E‐2 Visa which is most commonly used.
The advantages of the E‐2 Visa
The E‐2 Visa is particularly advantageous for foreign business owners, managers and essential skilled employees to remain in the U.S. for extended periods of time in furtherance of their investment. E‐2 Visa renewals are, potentially, indefinite as long as the business continues to generate enough income to support more than the investor and his/her family.
It is also one of the best alternatives for a foreign national who has exhausted the allowed time in an H and/or L status. It can be used by non‐degree workers and for self‐petitioning. Additionally, the spouse of the E investor can apply to obtain work authorization
Who can obtain an E‐2 Visa?
A national of a foreign country in which the U.S. maintains an appropriate treaty of commerce and navigation, and who is coming to the U.S. to develop and direct the operations of an enterprise in which the national or the petitioning company has invested, or is actively in the process of investing a substantial amount of capital.
The investor may start, or buy an existing business. Oftentimes, it is best for the applicant to buy an existing business. This status is not designed for retirees or employees of nonprofit organizations.
What are the challenges of the E‐2 Visa application?
The increased scrutiny and inconsistencies of adjudications by the consular posts around the world coupled with the irrevocable expenses incurred by the client can cause much stress to the applicant and his/her family. A thorough and organized filing can make visa processing less stressful and oftentimes expedite an approval.
The first step in E‐2 Visa planning
The U.S. must have the requisite treaty with the applicant’s country of citizenship. Without the existence of the applicable treaty, no E‐2 visa application is possible. A list of the treaty countries which support E visa applications can be found in the Foreign Affairs Manual (FAM)1 and at the Department of State website2.
The individual investor or employee and the E business must have the nationality of the same treaty country. A person’s nationality is determined by the authorities of the country in which the person claims nationality.
The business’ nationality is determined by the nationality of the majority owners of the business. When the treaty business is at least fifty percent owned by nationals of the same treaty country, the nationality requirement is satisfied.
What additional requirements are needed to obtain a Treaty Investor (E‐2) Visa?
An E‐2 Visa applicant must also show that:
•He/She has invested or is actively in the process of investing funds which are at risk, or subject to loss, if the business fails.
•The enterprise is real and operational. Speculative or idle investments do not qualify.
•The investment is substantial and proportional to the cost of the enterprise.
•The investment generates sufficient income to provide a living for more than the investor and his/her family.
•The investor is coming to the U.S. to develop and direct the enterprise.
•If the applicant is not the principal investor, he/she must be employed in a supervisory, executive or highly specialized skills capacity.
•The applicant intends to depart the U.S. when the E status terminates.
How can the applicant show that he has invested irrevocably committed funds?
One of the most taxing requirements for the E visa applicant is that the investment capital must be subject to partial or total loss, if the investment is not successful. To show funds commitment, the investor should present statements verifying the purchase of items committed to the business and also that a portion of the required funds are being held in escrow pending visa approval.
What is a substantial investment?
There is no bright‐line minimum investment that qualifies as substantial. The applicant must show an investment sufficient to indicate the investor’s financial commitment to the enterprise and to support the successful development of the business.
For example, the guidelines provide that an investment of 100% or a higher of the cost of the business would typically qualify for a business that costs $100,000 or less. Conversely, an investment of $10 million in a business that costs $100 million would likely qualify as a substantial investment.
What is required to show that the investment is not marginal?
Meeting the marginality requirement is highly dependant on showing that the business can create and support jobs for U.S. workers. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide for minimal living for the investor and his/her family.
An investor cannot show independent sources of income to support his/her family to show that the business is not marginal. Although not as persuasive as creating direct jobs for U.S. workers, the applicant should indicate that the business will also create and support indirect job expansion, as it will provide commerce for other local businesses such as printers, couriers, banks, utility companies, etc.
What is the length of stay of an E visa holder and how long does the process take?
An E visa is typically issued for five years; however the I‐94, providing the length of stay allowed in the U.S., is given for two years at a time. Be prepared for an E‐2 Visa Application to take a several months. The length and the complexity of the adjudication vary from consulate to consulate.
What status can the spouse and children of the investor obtain?
The spouse and unmarried children under the age of 21 of the visa applicant, regardless of their nationality, can apply to obtain E status. A significant benefit of the E visa is that the spouse of the principal E visa holder is able to seek employment authorization from the DHS.
Where to apply for an E Visa?
This is a strategic decision that should be made with the guidance of an immigration attorney with experience in E visas. The application can be made in the U.S. or at the consular post after a full analysis of the facts of the case and the requirements of the applicable consular post.
Consular processing tips
When preparing the consulate application, it is critical to check the consulate’s website on a regular basis. Each consulate has specific requirements and filing procedures and formats that must be followed which change on a regular basis without notice. There are more than 75 U.S. embassies and consulates around the world, each with its own particular requirements.
What are the main reasons for a denial or requests for additional evidence?
•Presenting a disorganized and incomplete case. Officers tell us that the majority of these cases are submitted by applicants without an immigration attorney, to save money, but at the end it costs more and it may lead to a case denial.
•Failure of the applicant to be prepared for the interview;
•Failure to overcome the marginality threshold;
•Failure to complete the DS‐160 application accurately; and
•Failure to submit supporting documents for dependants.
What if the application is denied?
The best defense to avoid a denial is preparing the best possible application. In the case of a consular application for an E visa, in addition to a strong application, the client must be well prepared for the interview.
If the application is strong and maybe the denial is the result of an adjudication error or misunderstanding, the attorney should prepare a strong rebuttal legal brief with supporting evidence to submit to the interviewing officer for reconsideration as soon as possible.
How can an E‐2 Visa holder obtain legal permanent resident status?
The E‐2 visa is a nonimmigrant visa whereby the investor must have intent to return to his/her home country once the business obligations have concluded. Not surprisingly, after living and working in the U.S. and spending significant time, money and effort in running successful businesses many foreign nationals want to stay in the U.S. However, there is no clear path from E status to apply for legal permanent residency.
Potential immigrant options include:
•Employment‐based sponsorship: U.S. businesses may sponsor the foreign national or his/her spouse for a legal permanent residency.
•Family‐based sponsorship: the E visa holder marries a U.S. citizen or lawful permanent resident or has other immediate relatives (parent, sibling, or child) who can provide sponsorship.
•EB‐5 Immigrant Investors Visa
The E visa involves detailed planning and preparation. But, despite its challenges, with the right guidance, it can be a very effective option for foreign nationals to live and work in the U.S. and at the same time create jobs and strengthen our economy.
1 9 FAM 41.51, Exhibit 1.