E 2 powerpoint presentation final - 3-1-14

FAKHOURY LAW GROUP
E-2 INVESTOR VISA
IMMIGRATION SEMINAR

March 1st, 2014

© 2014, Fakhoury Law Group, PC

Disclaimer
_______________________________________________________

The materials contained in this PowerPoint do not
constitute direct legal advice and is for informational
purposes only. An attorney-client relationship is not
presumed or intended by receipt or review of this
presentation. The information provided should never
replace informed counsel when specific immigrationrelated guidance is needed.


About Us
_______________________________________________________
• Founded in 1997 - Global staff of
over 60 attorneys, paralegals and
immigration consultants

• Premier-AV Rated Immigration law
Firm
• Leaders in providing Global
Immigration Services for over 100
countries
• Multi-national presence with offices
and partners around the globe

Exceptional
Legal
Expertise

Lean
Processes
and
Technology

Outstanding
Value Proposition

• ISO 9001-2008 certified


Introduction to E-2 Investor Visa Category
_______________________________________________________
An E-2 treaty investor visa is a nonimmigrant visa that enables a
national of a treaty country (a country with which the United States
maintains a treaty of commerce and navigation) to be admitted to the

United States based on an investment he or she will be controlling
while inside the United States.


E-2 Investor Visa Requirement
_______________________________________________________
In order to qualify for E-2 Investor Visa:
1)
2)
3)
4)
5)
6)
7)
8)

Requisite treaty must exist;
Individual and/or business possess the nationality of the treaty country;
Applicant has invested or is actively in the process of investing;
Enterprise is a real and operating commercial enterprise;
Applicant's investment is substantial;
Investment is more than a marginal one solely for earning a living;
Applicant is in a position to "develop and direct" the enterprise;
Applicant, if an employee, is either in a managerial position or possesses
essential skills to the firm's operations in the U.S.; and
9) Applicant intends to depart the United States when the E-2 status
terminates.
Source: 9 FAM 41.51 N1.2


Requisite treaty must exists between USA and …
_________________________________________________________
Africa
Cameroon
Congo
Europe
(Brazzaville)
Albania
Congo
Armenia
Austria
(Kinshasa)
Azerbaijan
Egypt
Belgium
Ethiopia&
Bosnia
Herzegovina
Liberia
Bulgaria
Morocco
Croatia
CzechSenegal
Republic
Togo
Denmark
Tunisia
Estonia

Asia
Bahrain
Bangladesh
China
(Taiwan)
Iran
Japan
Jordan
Kazakhstan
Kyrgyzstan
Mongolia
Oman
Pakistan
Philippines
Singapore
South
Korea
Sri Lanka
Thailand
Turkey

Europe
Kosovo
Albania
Latvia
Armenia
Lithuania
Austria
Luxembourg
Azerbaijan
Macedonia
Belgium
Moldova
Bosnia &
Herzegovina Montenegro
Netherlands
Bulgaria
Norway
Croatia
Poland
CzechRomania
Republic
Serbia
Denmark
SlovakEstonia
Republic
Finland
Slovenia
France
Spain
Georgia
Sweden
Germany
Switzerland
Ireland
Ukraine
Italy
U.K
Yugoslavia

North America
Canada
Costa Rica
Grenada
Honduras
Jamaica
Mexico
Panama
Trinidad &
Tobago
Oceania
Australia

Finland
South America
France
Argentina
Georgia
Bolivia
Germany
Ireland
Chile
Italy
Colombia
Kosovo
Ecuador
Latvia
Lithuania
Paraguay
Luxembourg
Suriname
Macedonia
Moldova
Source: http://travel.state.gov/content/visas/english/fees/treaty.html#
Montenegro
Netherlands

E-2 Treaty Countries


Individual and/or Business must Possess the Nationality of the
Treaty Country
_______________________________________________________
Individuals:
• The nationality of the individual is determined by the authorities of the
country of which the Foreign National claims nationality;
• National of the treaty country MUST own at least 50% of the business;
• Foreign Nationals who are also U.S. permanent residents cannot be
counted toward determining at least 50% ownership.

Business:
• The nationality of a business is determined by the nationality of the
individual owners of that business;
• The country of incorporation is irrelevant to the nationality
requirement for E visa purposes;
• Both individual and company must satisfy the 50% rule.

Dual Nationality of the Treaty Investor
_______________________________________________________
• A business can only have one qualifying nationality for E-2 visa
status. Unless, the enterprise is owned and controlled equally
(50/50) by nationals of two treaty countries.
• For dual national owner(s), a choice must be made as to which
nationality should be used.
• Once the nationality is chosen, all owners and E visa
employees must possess the nationality of the single E visa
qualifying country (even if they possess the nationality of
another E visa country).
• When a company is equally owned and controlled by nationals
of two different treaty countries, employees of either nationality
may obtain E visas to work for that company.


Applicant Must Invest or be in the Process of Investing
_______________________________________________________
Possession and Control of the Funds
• Applicant must demonstrate possession and control of the funds,
including the funds already invested in the enterprise (Ex. Savings,
gift, inheritance, etc.)
• Inheritance of a business does not constitute an investment;
• Source of funds can be either from outside of the USA or inside.
Investment Connotes Risk
• Foreign National investment must be at risk
• If the business goes bad and the funds are not subject to partial or
total loss, then it is not an “investment;”
• Funds must be irrevocably committed;
• Mere intent to invest, or uncommitted funds in the bank account,
or even prospective investment arrangements, entailing no
present commitment, will not suffice.
Source: 9 FAM 41.51 N8.1-1


Qualifying Investment vs. Non-Qualifying Investment
_______________________________________________________
Qualifying investments

Non-qualifying investments

Loans secured by the investor’s own assets, Mortgage debt or other loans secured
such as a mortgage on his or her real property.
by the enterprise assets.
Unsecured loans granted on the basis of the Loans for which the lending institution
investors signature.
has recourse against a guarantor in the
event of nonpayment by the investor.

Value of purchased equipment and property.

Cash not held in reserve by the
corporation, such as cash held in
personal bank accounts.

Cash reserves placed in a business account at
the disposal of the business for purchase of
equipment, property, or start-up inventory.
(Note: cash reserves alone, without evidence
that the business enterprise has been undertaken,
will not satisfy the requirement of an “active”
investment.)

Rental payments, inventory purchases,
and other recurring costs beyond startup of the enterprise. Such costs are
assumed to be paid out of income
generated by the enterprise, and are
not a part of the investment
attributable to the investor.


Business Loans and Indebtedness
_______________________________________________________
Q. Does mortgage debt or commercial loans secured by the assets of
the enterprise count towards the investment?
A. No, because there is no requisite element of risk. For example, if
the business in which the Foreign National is investing is used as
collateral, funds from the resulting loan or mortgage are not at
risk, even if some personal assets are also used as collateral.
Q. What does count toward the investment?
A. Only indebtedness collateralized by the Foreign National’s own
personal assets, such as a second mortgage on a home, or
unsecured loans, such as a loan on the Foreign National personal
signature may be included, since the Foreign National risks the
funds in the event of a business failure.


Enterprise must be a real operating commercial enterprise
______________________________________________________

• The enterprise must be real a and active commercial
enterprise;
• The enterprise must produce some service or
commodity;
• The enterprise cannot be a paper organization or an
idle speculative investment;
• The enterprise must be for profit, thus, eliminating
non-profit organizations from consideration for the
E-2 category.


Applicant's investment is substantial
_______________________________________________________
• No set dollar figure constitutes a minimum amount of
investment to be considered "substantial" for E-2 visa
purposes;
• The investment must be sufficient to ensure the treaty
investor's financial commitment to the successful operation of
the enterprise; and
• Investment must be proportionally substantial:
• Proportionality Test:
• The amount of qualifying funds invested, and the cost
of an established business; or
• If a newly created business, the cost of establishing
such a business.


Substantial Investment Sliding Scale
_______________________________________________________
The sliding scale that is sometimes used by the Consular Officers:
Total value of business or cost to start new business

Minimum percentage of
investment required

Less than $500,000

75 %

$500,000 to $3,000,000

50 %

More than $3,000, 000

30 %

Although, this scale is not cited in the Immigration and Naturalization Service
and Department of State regulations, it may still be used as a benchmark in
making an initial assessment as to whether an investment is substantial.
(Note: The scale is only a guideline. Investments must still be evaluated on a
case-by-case basis for adequacy. Small-scale investments may still be
acceptable, including ones smaller than $100,000, if the amount invested
represents nearly all of the total value of the business or the start-up costs.)


Investment must be more than marginal
_______________________________________________________
The investment must not be solely for the purpose of earning a living for the
investor and his or her family.
The marginality of an investment enterprise is measured by its capacity to
employ U.S. workers other than the investor and his or her family members.
Determining if the investment is marginal:
• Is the business enterprise the type that of necessity, will require
employees beyond the investor in order to operate?
• Will the business be conducted on a scale that will assure this
employment?
• Can reliable projections of income be made that show that sufficient
funds will be generated beyond a living wage for the investor, such that
money will be available to pay salaries to U.S. workers?


Applicant is in a position to "develop & direct" the enterprise
_____________________________________________________

In accordance with Section 101(a)(15)(E)(ii) of the
Immigration and Nationality Act (INA), it must be
shown that a national (or nationals) of the treaty country,
through ownership, or by other means; develop and
direct the activities of the enterprise.
The type of enterprise being sought will determine how
this requirement is applied.


Employer Qualification
_______________________________________________________
In order to qualify to bring an employee into the United States under
INA 101(a)(15)(E), several criteria must be met:
a) The prospective employer must meet the nationality requirement. If
the employer is an individual, the employee must be of the same
treaty country. If the employer is a corporation or other business
organization, at least 50 % of the ownership must have the same
nationality as the treaty country;
b) The employer and the employee must have the same nationality;
and
c) The employer, if not a resident abroad, must be maintaining “E”
status in the United States.


If E-2 applicant is an employee: must work in managerial position
or must possess essential skills applicable to the firm’s operations
_______________________________________________________
Two classes of employees may be accorded treaty-investor status:
1. Treaty nationals serving in a managerial capacity,
2. Treaty nationals who serve in technical capacities, requiring special
training and qualifications, and who are needed to:
• Establish the enterprise (start-up);
• Train or supervise persons serving in technical positions, such
as manufacturing, maintenance, or repair technicians; and
• Continuously monitor and develop product improvement and
quality control.
When employees are brought to the U.S. for start-up of the enterprise, it is
expected that once start-up has been completed, U.S. workers will be trained
to fill these positions.


Factors to determine if the employee is essential
_______________________________________________________
•
•
•
•
•

The employee’s degree or proven expertise in area of operations;
The uniqueness of the specific skills;
The function of the job to which the applicant is destined;
The salary such special expertise will command;
The employees skills need to be indispensable to the success of
enterprise;
• The availability of U.S. workers.
Factors that are not material as to whether the employee is essential:
• Knowledge of a foreign culture;
• Knowledge of a foreign language; or
• Previous employment with the company.


Applicant intends to depart the United States when the E-2 status
terminates
_______________________________________________________
• Applicant must have an intent to depart the U.S. upon termination
of status.
• Applicant does not need to keep a separate residence in a foreign
country.
• Applicant may sell his/her residence and move household effects to
the U.S.


Spouses and Children of E-2 Investor
_______________________________________________________

 The spouse of an E-2 investor is entitled to derivative status in the
same classification as the principal applicant.
 The spouse of an E-2 investor can apply for work authorization
after entering the U.S. with an E-2 visa.
 The children under 21 can also accompany their parents to the U.S.
on an E-2 visa.
 The children can attend school in the U.S. in E-2 status.


E-2 Statistics
_______________________________________________________
E-2 Treaty Investor Visas Issued FY 2008-2012
2008

2009

2010

2011

2012

28,588

24,033

25,500

28,245

31,942

Worldwide E-2 Workload FY 2012
Issued

Refused

Total Workload

Waived/Overcome

31,942

7,115

39,057

4,538

Source: http://www.travel.state.gov/content/visas/english/law-and-policy/statistics/non-immigrant-visas.html


E-2 Class of Admission (I-94 Only) FY 2012: Total 288,217
_______________________________________________________
State

# I-94

State

# I-94

State

# I-94

State

# I-94

Other

Unknown

Alabama

3,413

Hawaii

2,029

Minnesota

627

Ohio

7,192

127

31,028

Alaska

183

Idaho

190

Mississippi

325

Oklahoma

204

Arizona

3,092

Illinois

6,281

Missouri

471

Oregon

1,077

Arkansas

386

Indiana

2,988

Montana

332

Pennsylvania

2,777

California

50,949

Iowa

299

Nebraska

235

Texas

52,145

Colorado

1,323

Kansas

309

Nevada

1,254

Utah

264

Connecticut

1,869

Kentucky

2,943

New
Hampshire

286

Vermont

561

Delaware

106

Louisiana

457

New Jersey

7,444

Virginia

2,572

District of
Columbia

476

Maine

3,228

New Mexico

472

Washington

16,375

Florida

20,701

Maryland

1,120

New York

25,293

West Virginia

170

Georgia

4,862

Massachusetts

2,621

North
Carolina

3,157

Wisconsin

536

Guam

1,684

Michigan

14,073

North Dakota

836

Wyoming

110


TOP Ten (10) E-2 Country Filers for FY2012
_______________________________________________________
Country

E-2 Applicants

Japan

10,130

Germany

3,847

South Korea

3,041

Mexico

2,938

Canada

2,221

Great Britain

1,979

France

1,741

Spain

1,042

Italy

924

Sweden

347



Advantages of E-2 Investor Visa
_______________________________________________________
 Can start up company or buy existing company;
 Can operate business and live anywhere in the USA;
 No immediate job creation requirement;

 Immediate work authorization for yourself;
 Length of visa is 5 years;
 E-2 visa can be renewed indefinitely;

 Spouse receives work authorization;
 Children under 21 can attend school in the USA;
 No Employer sponsorship required; and

 Apply directly at a Department of State (DOS) embassy or consulate.


SPECIAL GUEST
_______________________________________________________

Consular Officer JP LAI
U.S. Consulate General
Toronto
• http://toronto.usconsulate.gov/


Q&A
_______________________________________________________
Q. Do I really have to invest the money before I apply for the visa?
Q. Can't you issue me the visa first?

Q. How do I start a business, if I don't have the visa?
Q. Where can I get information about good places to invest in the U.S.?
Q. What licenses and permits do I need to open and run a business in the
U.S.?
Q. My spouse and/or children are citizens of a country other than my own.
Can they still accompany me?
Q. Can anyone apply for an E-visa in Toronto?
Q. Do I have to come to Toronto to apply in person?
Q. Should I apply at the consulate or file a change of status application in the
U.S.?
Source: http://toronto.usconsulate.gov/visas/treaty-trader-visas/treaty-trader-and-investor-visas-faqs.html


THANK YOU!

3290 West Big Beaver Road, Suite 510, Troy, MI 48084
Phone: 248-643-4900 Fax: 248-643-4907
Rami@employmentimmigration.com
Syeda@employmentimmigration.com
www.employmentimmigration.com

www.investorvisas.net

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