E Visa - Treaty Traders, Investors and Australian Professionals
E-2 Visa for Treaty Traders
The E-2 Treaty Trader visa, made possible by a treaty between various countries and the U.S., allows one to live in the U.S. for many years, but not permanently.
There are the following requirements:
- Existence of a treaty of commerce between the foreign national's country of citizenship and the U.S.
- Majority ownership in an investment by a national or citizen of the treaty country
- Citizenship in the treaty country by the person seeking admission under treaty investor status.
- There must be an active investment in the U.S.
- The investment must be substantial and the investor's own capital should be at risk
- The investment should have the potential to create jobs for U.S. workers
- The applicant must fill a key role within the company and have a controlling interest
Generally, much of the supporting documentation needed for the E-2 non-immigrant status is included in a letter signed by the sponsoring company. This letter is drafted by our office according to the specifics of the individual case, and covers both the E-2 essentials as well as the supporting documentation which strengthens the application. Information on the size and amount of the investment, the prospects for the employment of U.S. workers, the duties to be performed by the individual for whom the visa is sought, and the qualifications of that individual to fulfill those duties are usually included in this letter.
Additional documentation needed for the E-2 application
- Proof of majority ownership of the company such as a certification of a corporate resolution showing the identity and percentage of ownership of the corporation or a statement from the company's accounting firm
- The company's Articles of Incorporation showing the type of business being created, along with brochures, promotional materials, or copies of any licenses required to conduct the business
- Loan agreements or bank statements showing the amount of the investment and source of the money
- Receipts for purchases of equipment, real property, start‑up inventory, costs incurred in establishing the business and capital improvements showing the type of financial transactions that make up the investment
- Copies of sales contracts already signed and/or letters showing on‑going negotiations should be submitted
- The employer's affirmations in the cover letter outlining the duties to be filled by the foreign national
- The foreign national's qualifications to fulfill the duties
- A legal brief tying the documents to the visa requirements
While the general outline for an E-2 application remains constant, there are always variations in the specifics. Contact our office to discuss the E-2 option in more detail and to determine if it appears to be a reasonable option for you. The E-2 visa does allow a foreign national to enter the U.S. for up to a year at a time to "work" at his/her owned investments, and can be renewed annually for an indefinite period of time.
E Visa for Investors
If you possess a substantial amount of capital to invest in a U.S. business, the Investor Visa may be the best option to acquire permanent residence in the quickest period of time. The U.S. Investor Visa program requires an investment of either US$500,000 or US$1,000,000, and the creation of at least 10 jobs for U.S. workers over a two year period. 10,000 visas annually will be made available to qualified immigrants seeking to enter the U.S. for the purpose of engaging in a "new commercial enterprise" that benefits the U.S economy by bringing money into the U.S and providing jobs for U.S workers.
Initially, the investor will be granted Conditional Permanent Residence. If after two years the applicant can establish that they are in compliance with the investment and job creation requirements of the Investor Visa Program they can submit an application to remove conditions on permanent residence. The immigration service will then determine if the applicant has established a commercial enterprise that complies with the investment and employment creation requirements before removing the conditional status. If the condition is not removed, the investor will lose their permanent residence status (green card).
If you do not have US$500,000 or US$1,000,000 to directly invest in business in the U.S, the Investor Visa is not appropriate for you. As an alternative, you should look into the E-2 Treaty Trader Visa that does not require such a large investment.
Requirements for the Investor Visa
The business venture can be either a newly created business, the reorganization of an existing business, or the salvaging of a failing business.
Some factors to be considered are:
- All financing used to purchase the commercial enterprise should be investment capital that is "at risk.” In other words, the funds must be committed to the business
- Debt may be used to secure capital provided the foreign investor is personally liable and the debt is not secured against the assets of the new enterprise
- Capital may come from abroad or from within the U.S.
The enterprise must employ at least 10 full-time U.S. workers. Independent contractors do not qualify as employees. In order to qualify under the employment creation category, the new enterprise must be:
- Established by the foreign applicant
- One in which the foreign investor will invest at least US $1 Million (or at least US$500,000.00 if investing in a government approved economic target area)
- One which will benefit the U.S. economy and create full-time employment for not fewer than 10 U.S. workers
- One in which the foreign investor will take a policy making and management role
To qualify, a foreign investor must maintain more than a passive role in the new enterprise. The regulations require the investor to be involved in the day-to-day managerial operations.
The new business enterprise may be created in one of the following ways:
- Creating an original new business not previously in existence
- Purchasing and restructuring an existing business
- Expanding, and thereby substantially changing the net worth or number of employees in a business
- Investing in a financially troubled business, so that there is a forty percent change in net worth or number of employees.
Investment Capital
The definition of capital also includes debt. The investor may include debts as capital provided they are personally liable for the debts and the assets of the enterprise are not used to secure any of the financial debt. Debt secured by the business assets may not be counted toward investment capital. Therefore, the foreign investor cannot receive any bonds or stocks for the capital contributed to the new business.
Not all Investor Visa applicants will be required to invest US $1 Million. If the enterprise is located in an economically weak or rural area, an investment of only US$500,000 is required. Certain government programs designed to offer some investment capital to foreign investors seeking permanent residence may be available. However, not all of these programs have been approved by the U.S. Citizenship and Immigration Services, and therefore caution should be used when participating in such an investment program.
Creating Employment:
An "employee" is defined as an individual who (1) provides services or labor for the new commercial enterprise, and (2) receives wages or other remuneration directly from the new commercial enterprise. Independent contractors will not meet the employee requirements. The investor is permitted to employ their spouse and children in the enterprise, but they do not count toward the 10 employee requirement.
Our firm is experienced in working with foreign investors and we advise consulting with one of our attorneys who can guide you through all aspects of the investor visa requirements and the necessary paperwork to qualify.
E-3 Work Visa for Australian Citizens
The E-3 visa is a new work visa category available only to Australian citizens. The E-3 Treaty Professional Visa is a temporary work visa that is usually issued for 2 years at a time. The primary E-3 visa applicant must be going to the U.S. for the purpose of working in a specialty occupation. The spouse and children of the E-3 visa applicant do not need to be Australian citizens. Spouses of E-3 visa holders are entitled to dependent visas and work authorization.
The term "Specialty Occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent). In order for someone to qualify for the E-3 visa, they must meet these minimum requirements. The definition is the same as the definition of an H-1B visa specialty occupation.
Please contact us to start your immigration application now.