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E2 Visa & Buying a Business

The E-2 Treaty Trader visa category is one that allows certain foreign nationals whose home country maintains a commercial or navigation treaty or bilateral investment treaty with the United States to work temporarily in order to carry on substantial investments in the U.S.  In many cases, an E-2 visa can be granted to an individual who is an employee of a treaty investor if he/she holds the same nationality as the foreign investor/employer and seeks admission to the U.S. to engage in duties that require special qualifications (either executive, managerial, supervisory or "essential" skills) that are essential to the operation of the enterprise. A foreign national may also qualify for E-2 status if he or she intends to develop and direct the operations of an enterprise in which he or she has invested, or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital.

E-2 visa holders are initially granted a period of admission for two (2) years with an unlimited number of two-year extensions of status.

The E-2 Treaty Investor Visa

Immigration Law Associates, PC is well versed and experienced in preparing E-2 visa applications on behalf of foreign corporations seeking to bring essential executives and personnel to the U.S. In addition, our firm also lends its knowledge to help foreign entrepreneurs comply with the immigration requirements necessary to establish a viable E-2 investment enterprise.

Strategic E-2 Visa Concepts

Strategic E-2 concepts are key ideas that can govern an employer or foreign national's use of the E-2 nonimmigrant visa category. These ideas are also important considerations that may guide how long an E-2 visa might be utilized and whether an employer and/or prospective foreign employee might consider Permanent Residence or perhaps another nonimmigrant visa category.

The E-2 Treaty Trader Must, Whether an Individual or Business or Individual Employed by that Individual or Business, Possess the Nationality of Country with whom the United States Maintains a Treaty of Commerce and Navigation:

 

Even if the treaty exists with the United States, a foreign investor who seeks E-2 visa status must meet all of the following requirements:

  1. The investor has invested or is actively in the process of investing;
  2. The investor's enterprise must be a real and operating commercial enterprise;
  3. The investor's investment is substantial;
  4. The investment is more than a marginal one solely for earning a living;
  5. The investor is in a position to "develop and direct" the enterprise;
  6. An E-2 applicant, if an employee of the investor, must be coming to the U.S in an executive/supervisory position or possesses skills essential to the firm's operations in the United States; and
  7. The E-2 visa applicant must intend to depart the United States when his/her E-2 status terminates.
  8.  

At Least Fifty (50%) of the Corresponding E-2 Business Must Be Owned By Nationals of the Treaty Country: The nationality of the company's stock holders is significant. For instance, if a business owns another business, then the nationality of the business' ownership must be mapped back to the nationalities of the corporate shareholders. In addition, the country of incorporation is not important with regard to satisfying the shareholders' nationality requirements for the E-2 visa.

Persons Seeking E-2 Status Must Be Engaged in Qualifying Activities: In order to qualify for E-2 status, employees of an E-2 employer, whether or not the employer is an individual or foreign company, must be engaged in activities that are executive, managerial, or supervisory in character. If he or she is not so employed, he/she must possess special qualifications that make the services that will be rendered essential for the efficient operation of the business.

 

A person with an essential skill must possess "special qualifications." Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. The factors to be considered in determining whether an employee possesses "special expertise" that is "essential" to the firm's U.S. operations include such factors as the proven expertise, uniqueness of the specific skills, length of experience with the firm, the period of training, and the salary. In determining whether the applicant possesses special qualifications that are essential to the treaty enterprise, an INS officer must take into account all the particular facts presented.

 

The Road to Faster Adjudications: Premium Processing. On June 1, 2001 the Immigration and Naturalization Service introduced a premium processing service that allows E-2 employers or employees to pay a $1000 premium-processing fee (in addition to regular filing fees) for expedited processing of their E-2 petitions. In return for the $1000 fee, the INS will guarantee processing of petitions within 15 calendar days of receipt of the petition. Applications filed concurrently by dependents of a beneficiary choosing to use the Premium Processing Service will also be processed within 15 days without an additional $1000 processing fee. If the INS does not issue an approval notice, notice of intent to deny, request for evidence, or notice of investigation for fraud or misrepresentation within 15 days of physical receipt of a petition, the Service will refund the $1000 fee but will still expeditiously process the case.

 

The Investor Must Show That It Has Either Made a Substantial Investment or Is Actively in the Process of Making a Substantial Investment in the Enterprise: To be "in the process of investing" for E-2 purposes, the funds or assets to be invested must be committed to the investment, and the commitment must be real and irrevocable. For the alien to be "in the process of investing", the alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. Merely intending to invest, or having possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not qualify an applicant for E-2 status.

 

A qualifying investment must be a real and active commercial or entrepreneurial undertaking, producing some commodity or service. The enterprise cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor without the intent to direct the enterprise. Uncommitted funds in a bank account do not represent an active investment, unless other evidence of business activities exists to demonstrate that the funds are used in the routine operation of the business- i.e., reserve funds.

 

The Applicant for the E-2 Visa Should Be In a Position to "Develop and Direct" the Enterprise Via His/Her Executive and Supervisory Duties: It must be shown that nationals of a treaty country own at least 50 percent of an enterprise. It must also be shown that a national (or nationals) of the treaty country, through ownership or by other means, develops and directs the activities of the enterprise. "Developing and directing" the enterprise activities generally refers to executive and supervisory responsibilities. Consequently, the following factors must be considered:
 

    1. The title of the position in which the applicant shall be employed, its place in the firm's organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the firm's overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience;
    2. Whether the executive or supervisory element of the position is a principal and primary function and not an incidental or collateral function. If the position chiefly involves routine work and secondarily entails supervision of low-level employees, the position could not be termed executive or supervisory.
       
  • The Foreign Investor Must Make A "Substantial" Investment: A "substantial" amount of capital for E-2 visa purposes constitutes that amount that is:
     
    1. Substantial in a proportional sense- i.e., in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;
    2. Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and
    3. Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E-2 visa purposes.
       

The value (cost) of the business is clearly dependent on the nature of the enterprise. Generally, the cost of an established business is its purchase price, which is normally considered to be the fair market value.

 

The Enterprise Must Be More Than Marginal: The foreign individual or company must not be investing in a marginal enterprise solely for the purpose of earning a living. An applicant is not entitled to E-2 status if the investment, even if substantial, will return only enough income to provide a living for the applicant and family. In determining whether an investment is marginal, two important factors are to be considered:
 

Additional Funds That Are Not Intended For The Enterprise: If the investor can support himself/herself and family with funds that will not be used for the enterprise and/or if the income derived from the enterprise exceeds what is necessary to support the investor and his/her family, then the enterprise is not marginal.

Economic Impact of the Business: The business must have the capacity, present or future, to make a significant economic contribution. The projected future capacity should generally be realizable within five years from the date the alien commences normal business articulates. It is recommended that applicants submit a reliable 5-year profitability business plan.

An Individual or Company Must Demonstrate Possession and Control of the Capital Assets, Including Funds Invested: If the individual or corporate investor has received the funds by legitimate means, e.g., savings, gift, inheritance, contest, etc. and has control and possession over the funds, the proper employment of the funds may constitute an E-2 investment. (It should be noted, however, that inheritance of a business does not constitute an investment.) Moreover, the source of the funds need not originate from outside the United States.

 

Initial E-2 Applications Where An Applicant Will Not Change His/Her Status in the U.S. to E-2 Will Require Consular Processing: Filing abroad at U.S. consulates abroad results in a totally new and independent adjudication by the consular offices; the standards used by consular offices abroad are often more demanding and difficult to meet.

Change/Extension of E-2 Status Within the U.S. Might Be Favorable: for instance, changing to E-status may happen when a foreign national is entitled to enter the U.S. in B-1 business visitor status in order to take initial steps to conduct trade in this country. The individual may be in a position in which the trading activities move more quickly than expected and require his or her immediate and continued presence. Now, with the new Premium Processing Service fee of $1,000, E-1 visa petitions can be adjudicated in the U.S. within fifteen days. Moreover, generally, as long as the treaty-trader maintains the intention to leave the United States at the end of his or her lawful stay, his or her presence here for prolonged periods is permissible.

 

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