E-1 and E-2 Visas

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If you're an investor and would like to have a business in the U.S., there are four ways you can do it.

• An L-1 visa - for an intracompany transferee
• An E-1 visa
• An E-2 visa
• A Green Card

E visas are treaty-based, so whether you're applying for an E-1 Treaty Trader visa, or an E-2 Treaty Investor visa, you must be a national of one of the treaty countries.

You can apply for an E visa either in the U.S. if you're already here on a B-visa, or through an embassy in another country. If you apply for one of them, such as an E-1 visa, and are denied, you can then apply for the other, and get some new eyes looking at your case.

The Treaty Countries

The treaty countries are basically European countries, Canada, Australia and Mexico. There are 72 countries on the list, although some of them allow only E-2 visas, e.g., Armenia, Ukraine and Romania; and some allow only E-1 visas, e.g. Greece. If you're from the U.K., the treaty requires that you actually live there, whereas the other treaty countries don't require that.

E-1 Treaty Trader Visa

The law for this visa requires that you're coming to the U.S. to do considerable trade between the U.S. and your country. Such trade would include any of a wide variety of activities, such as:

• Technology
• International banking
• Insurance
• Tourism
• Some news gathering activities
• Selling goods and services

Over half of your trade must be between your country and the U.S.

Two Categories of People Can Obtain E-1 Visas

You can be either:

• Someone who'll be developing and directing the enterprise; or
• A key employee - some who's "essential" to the proper running of the company

The fine distinctions between these two categories can challenge the most intelligent of minds, so please contact an experienced immigration attorney before rushing ahead with anything.

E-2 Treaty Investor Visa

An investor is regarded as a person who's placing money at risk in hopes of profit. The money must be your own and be secured by your own personal assets. If the money isn't already invested, it must be irrevocably allocated; i.e., you can't pull it back.

You might immediately ask: What if I invest my money, and am then denied a visa? That's another instance that demonstrates the wisdom of hiring an experienced immigration lawyer. This situation can be dealt with in the language of your original investment agreement. It's called a condition precedent, meaning that the visa approval is a condition for the contract to end up being binding.

Without proof that you've already invested the money, you can't obtain the visa, making this a bump in the road to be crossed as smoothly as possible so that you can continue on your journey. The E-2 visa performs some legal acrobatics by allowing you to stay in the U.S. with two opposite intentions held simultaneously: to stay and to leave. Please call or email us for a better understanding of E-2 visa law.

Your Investment Must Be Substantial

In deciding whether or not your investment is substantial enough, the government will consider a variety of items:

• Is it substantial considering the upcoming cost of doing business?
• Is there enough to float you for a while if things take longer than planned?
• Is it properly proportional to the total value of the company?
• Is it marginal? In other words, is it large enough only to support you and your family, or will it also cover hiring costs or setting up more ways for the company to generate income?

Company Earnings

There's no specified amount that the company has to make. But it must have growth potential, and must have proved itself successful by the end of five years. Some losses in the first year or two are acceptable, but after five years the company must be self-supporting.

50% Ownership

Besides being the manager or an executive, you must own at least half the company. If you own less, you must have a large amount of control, such as a veto power, and must be able and willing to document your exact situation. Your goal has to be to develop and direct the company. E-2 visas are not for skilled workers, but for business leaders.

Employees

Under an E visa, you can have employees, but they must belong to the same country as you, and must be executives, supervisors, or essential people. They must be people who provide control and responsibility for the whole company, or at least a major part of it.

Applying for a Green Card

You can obtain a Green Card from an L-1 visa, and there's another way to get one known as the Fifth Preference Green Card. If you invest a million dollars in a company here and employ ten U.S. workers for two years, you can then apply for a Green Card.

Alternatively, if you invest $500,000 in a company operating in a high unemployment area, you can also apply for the Green Card.

There are rules to follow and there's been fraud, so requirements are technical and strict. It's best to hire an immigration lawyer to help you. The downside of this way of applying for a Green Card is that if your business fails and you lose your money, you'll have to leave the U.S.

Please contact the immigration lawyers at Jacoby & Meyers today, and we can help move you forward towards an exciting future in the U.S. We have offices nationwide.