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The E-2 Visa Category | Print |  Email
Tuesday, 18 February 2003
The "Treaty Investor" non-immigrant visa

Q I am interested in going to the US to develop the operations of an entertainment promotions business I am about to establish there. I am not interested in immigrating to the US, as my main company here in Ireland is well established and very successful. Is there a particular visa I should look for at the US Embassy?

There is a visa available known as the E-2 Treaty Investor visa. Readers should not confuse this visa with the other investor visa, which is also known as the "employment creation" visa. The "Treaty Investor" visa is a non-immigrant visa and does not give you legal permanent resident or green card status. Non-immigrant visas frequently require the applicant to prove non-immigrant intent. This means that you may have to prove that you have ties to your home country like home-ownership and family. The investment must be in a commercial enterprise, therefore nonprofit institutions are not considered commercial enterprises and will not result in E eligibility.

The treaty investor visa is available to persons coming to the US to develop and direct the operations of a business in which they have invested, or are in the process of investing, a substantial amount of capital. As with the treaty trader category, spouses and children may accompany the principal alien to the US. The company may also obtain visas for employees with essential skills or who are executives or managers. An instance where the E2 may be performing menial tasks may be denied an E-2.

The treaty investor visas are available only when more than fifty per cent of the business is owned by nationals of the treaty country, who are not permanent residents of the US. The US must have a trade or investment treaty with your native country in order for you to be eligible for an E visa.

The common question with this visa is what represents "substantial investment." As a general rule the amount of capital invested in the business must constitute more than half the value of the business. If it is for a new business, the amount of money invested must be more than half the amount needed to start such a business. If you are applying for the E-2 and you are also the owner of the business, you must also show the consular officer that the money invested is your own and that you are at risk for the failure of the business.

Substantiality of investment: The Department of State by statute is charged with the responsibility of defining "substantial" The test may include: the amount invested weighed against the total cost of purchasing or creating the enterprise; the amount normally considered sufficient to ensure the investor's commitment to the successful operation of the enterprise; and a magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise. The INS and the State Department have each published final E rules in September 1997. The rules provide guidance regarding a "substantial investment." The INS and the State Department had proposed the use of a sliding scale. Under that scale, the larger the total value of the business or the cost to start up the business, the smaller the percentage of the total investment the investor must put up to meet the substantiality requirement. Citing concerns that the scale may be applied rigidly by adjudicators, both agencies declined to include the scale in their final rules. The State Department has stated, however, that consular officers may still use the scale as a benchmark. As a result, it may still be good practice to refer to the scale in making an initial assessment as to whether an investment is "substantial." Following is the sliding scale that applies to both nonimmigrant and immigrant visas.

Total value of business or Minimum percentage cost to start new business of investment required:

Less than $500,000 - 75%

$500,000 to $3,000,000 - 50%

More than $3,000,000 - 30%

Remember that multi-million dollar investments by large foreign corporations may be substantial without regard to their proportion to the total business value. Note also that the scale is not intended to be a rigid, bright-line test, but only a guideline; investments must still be evaluated on a case-by-case basis for adequacy.

As with many visa petitions, it is document intensive and be prepared to show the INS copies of evidence about you and your business. You should have a qualified immigration attorney assist you in all areas surrounding the application for an E visa. Always photocopy for your own records copies of all files submitted to US INS in the course of a visa application.

NOTE: Changes to L and E visa EAD procedures for L & E spouses.

In January, 02, the President signed two bills into law (H.R. 2277 and H.R. 2278) that make important and welcome changes to U.S. immigration law. Previously, spouses and children of L-1, E-1, and E-2 foreign nationals could live and attend school in the U.S. while the principal visa holder was

working in the U.S. but they were not permitted to work in the U.S. After last week, Congress has instructed the INS to provide spouses in these categories with an "employment authorized endorsement or other appropriate work permit."

INS have just released instructions on this issue. The spouse of an L1 should fill out a form I-765, and file it with proof of L-2 or E-1/E-2 status, their marriage certificate, and proof of their spouses L-1 or E-1/E-2 status, including a recent pay stub. People in L-2 status should file with the INS, Vermont Service Center, 75 Lower Weldon St., St. Albans, VT 05479

We should point out that the procedures have changed for the E-1/E-2: spouses can apply in Vermont. The exception is if they are filing with the initial E-1/E-2 application for the principal, the E-1/E-2 is filed in Texas, and so the I-765 is sent there as well for the spouse.

The Irish Immigration Center assists people each week on the employment authorization forms and visa photographs. IIC is also allowed to certify copies of documents for submission to INS. Call now for an appointment.

The Irish Immigration Center

59 Temple Place, Suite 1010, Boston, MA 02111

Telephone (617) 542-7654 Fax (617) 542-7655

Email: immigration@iicenter.com Website: www.iicenter.org

An Agency Accredited by the US Immigration and Naturalization Service

Disclaimer:These articles are published to inform, not to advise. Areas of law are rapidly changing. The US Immigration and Naturalization Service and US Department of State regularly amend regulations and alter processing and filing procedures. For legal advice seek the assistance of an IIC immigration specialist or an immigration attorney.




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