When Immigration Matters

The E-2 Investment Visa may soon be available to Israeli citizens.

Posted by Karen-Lee Pollak on Thu, Mar 29, 2012 @ 6:16 PM

E-2, investment, visaH.R. 3992, introduced on February 9, 2012 by Rep. Berman (D-CA), would make Israeli nationals eligible to enter the U.S. as nonimmigrant investors as provided for under the Immigration and Naturalization Act, if Israel provides reciprocal nonimmigrant treatment to U.S. nationals.

On February 28, 2012, the House Judiciary committee passed H.R. 3992 by a voice vote.  On March 19, 2012, the House of Representatives passed H.R. 3992 by a vote of 371-0.  The Senate Judiciary committee has not yet considered this bill.  If passed, H.R. 3992 would allow Israelis to qualify for the E-2 Investment Visa. 

The E 2 visa provides benefits to nationals of foreign countries who invest in the United States.  The E visa category can be used by various types of companies, whether owned by individuals or large multinational corporations. The E visa can be used by the company’s principals or by its employees.

Germany, Italy, Switzerland, United Kingdom, Taiwan, Pakistan, Japan and Australia are just some of the countries that have E-2 Investment treaties with the United States.  Majority ownership or control of the investing or trading company must be held by nationals of the foreign country. 

An investment must meet several criteria in order to qualify for an E-2 visa. These criteria include:

  • Showing that "substantial" investment or funds are available and committed to the investment
  • The investment must be in an active business as opposed to passive investment such as purchasing a home
  • At least 50% of the business must be owned by an alien from a country which has a treaty with the United States
  • The investment must create enough profit to provide a living for more than just the alien and his/her family

There is no minimum amount of investment necessary to obtain an E-2 visa, and whether an amount will be considered "substantial" depends on the type of business involved. In most cases, the investment must be at least $100,000USD.

Employees of E-2 companies may be granted E-2 visas if they are or will be engaged in duties that are executive, managerial, or supervisory in nature. If he/she is employed in a minor capacity, the employee may be granted E-2 visa if he or she has special qualifications that make the services to be rendered essential to the enterprise. 

The E-1 Treaty-trader visa is already available to Israeli Citizens.  This Visa involves more than 50% trade between Israel and the United States.  The amount of trade must be sufficient to ensure a continuous flow of international trade between the U.S. and the treaty country.

The spouse and children (unmarried and under 21) of E-1 or E-2 visa holders are entitled to the same E-1 or E-2 classification as the principal.

E Visa Application Process

The application process for the E visa includes filing a petition with the USCIS or U.S. Consulate. If filed with the USCIS, the application waiting period is generally several months. The USCIS offers an option for premium processing. For a $1,225.00 fee, the USCIS will process the petition in 15 days. If filed with a U.S. Consulate, it usually takes a a few days from the interview to have the E-2 visa stamped in the applicant’s passport. 

We will update this blog as soon as more information becomes available.

 

Alternative Visa Options Once H-1B Cap Is Reached

Posted by Michael Pollak on Sat, Feb 27, 2010 @ 8:45 AM

IMPACT OF THE EARLY CUT-OFF OF H-1B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2011 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity.  This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but the U.S. company must control the employee's performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States.  There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant's home country.  For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.  Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

Immigration Question

Non Immigrant Visa Options (E-1 & E-2 Visas) to Obtain a Green Card

Posted by Michael Pollak on Fri, Oct 09, 2009 @ 8:35 AM

Learn how to obtain a green card via the E visa category.  This article outlines the three basic requirements for obtaining an E-1 (Treaty Trader) or E-2 (Investment) visa though trade and investment in the U.S. 

Read more in Karen's article, Green Cards Via Trade and Investment in the U.S. published in HG.Org Wordwide Legal Directories.

Have an immigration question?  Our immigration attorneys share their experience and expertise.  Click below to ask your question.

Immigration Question 

Immigration 101: E-1 or Treaty-Trader Visa

Posted by Michael Pollak on Mon, Aug 17, 2009 @ 2:04 PM

An E-1 or Treaty-Trader visa is for individuals involved in the exchange, purchase or sale of goods, services or merchandise. Services include but are not limited to technology architecture, engineering consulting or accounting services. The trade must principally be between the United States and the treaty country. That is, more than 50 percent of the total volume of international trade must be between the U.S. and the treaty country. Also, the amount of trade must be sufficient to ensure a continuous flow
of international trade between the U.S. and the treaty country.

E-1 or Treaty-Trader VisaFinally, the trade in goods and services should be "substantial" in terms of value, volume or a large number of small transactions. There is no minimum dollar amount necessary for the investment to be considered "substantial" and this requirement is determined on a case by case basis. For example, the import or export of a million widgets at $0.50 per widget would be considered substantial.  However, importing three machines at $333,000 per machine may not be considered substantial.

Immigration 101: Green Cards via Trade & Investment in the USA

Posted by Michael Pollak on Mon, Aug 17, 2009 @ 1:45 PM

For most foreign nationals wanting to permanently live and work in the United States, the ultimate goal is to obtain a "green card" or permanent residency status. The most common method of obtaining permanent residency is through sponsorship by an employer or family member.

For wealthy individuals, a $1 million investment in a business that Green Cards via Trade and Investment in the U.S.creates or preserves at least 10 full-time jobs is also an option. That amount is reduced to $500,000 where the business is located in areas of high unemployment or other qualifying rural areas.

However, where these options are unavailable, foreign nationals from countries with investment or commerce treaties with the United States may still obtain a visa to live and work in the United States by either investing in a business in the United States (E-1 visa) or by conducting trade with the United States (E-2 visa). The requirements of the E visa may be found in §101(a)(15)(E) of the Immigration and Naturalization Act; 8 U.S.C.A. §1101(a)(15)(E).

The E visa category may be used by various types of companies, whether owned by individuals or large multinational corporations, and may be used by the company's principals or by its employees. Although the E visa is considered a non-immigrant visa, unlike other nonimmigrant visas, it may be renewed indefinitely and the
E visa holder may apply for a green card through the business supporting the E visa.

There are three basic requirements for obtaining an E-1 or E-2 visa. First, a treaty must exist between the United States and the foreign national's home country. Germany, Italy, Switzerland, United Kingdom, Taiwan, Pakistan, Iran, Japan and Australia are just some of the countries that have treaties with the United States. Second, majority ownership or control of the investing or trading company must be held by nationals of the foreign country. Third, every employee or principal of the company seeking E visa status must be a citizen of the foreign country where the company
is based.

The Treaty-Trader/Treaty Investor Visa (E-1/E-2)

Posted by Michael Pollak on Sat, Aug 01, 2009 @ 1:07 PM

"E" or "treaty" visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital. The E-2 category includes individual investors as well as managers, executives, and "essential skills" employees of business entities that make the investment. As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the United States and the applicant's home country. For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national, but the applicant does not have to be an owner of the business. There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country. The USCIS determines whether the trade is substantial on a case-by-case basis. Factors that may be considered include the nature of the business, the number of transactions, the quantity of trade and the outlay of capital.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis. The investor must have experience in the business and must be actively involved. The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the United States for a two-year period with unlimited two-year renewals. Spouses of E visa holders may apply for work authorization.

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