Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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E-2 Expertise

The E-1 and E-2 Visa Categories are oft described as alternatives to the H1-B and other visa categories. In my opinion, while the E visa might be viewed as an alternative, it is better seen as an entity all of its own, available to sophisticated business persons whether here or abroad. To view it simply as an alternative, underestimates a wonderful normally overlooked visa category.

Foreign nationals, whether here or abroad, that set up a new enterprise in the United States may be issued the change of status (if here) or visa (if abroad) for a period of 5 years. Practically speaking, changes of status to E are normally granted in 2 year increments while consular processing the E results in the 5 year visa. Then again, if the foreign consul is concerned with the viability of the enterprise, a visa of 1-2 years may be issued.

Viability of the enterprise is appropriately summed up as "credibility". And, credibility in the E visa context is demonstrated in part through submission of a 5 year business plan with both income and expense projections. Said projections should include but not be limited to salary and a rate of return on the investment.

Credibility in the context of an E-1 (treaty trader) visa also means that the local enterprise must demonstrate that it is engaged in substantial trade with the Philippines-at least 50.1% of the total volume of trade conducted must be between the U.S. and the treaty country that the foreign national comes from.

In the E-2 context, the Philippine company or individual must be in the process of investing or have invested a substantial amount of money in the United States. While the Foreign Affairs Manual does not quantify what amounts to a substantial investment, the investment must be enough to warrant payment of salary as described above and overall business functionality. Put simply, it has to make sense.

One mechanism that works wonderfully for persons considering the E-2 visa is franchise opportunities. I have seen first hand, what reputable franchise companies can do for investors. Well known brands can be acquired to open a small restaurant with each opening sometimes resulting in a 35% rate of return on the investment. And, those who enter into franchise deals can negotiate licenses through the initial franchise investment for up to 15 different locations in surrounding areas.

In the odd event the potential E investor does not have a visa to come to the United States, one may obtain a B-1 (business visitor) visa to enter to set up the E enterprise. While one cannot run the E enterprise on a day-to-day basis as a B-1 visitor, it is simply a start.

In short, if you are seriously considering a U.S. investment, consider the E. Do not underestimate the visa by labeling it an alternative. It is a vehicle of its own and should be treated accordingly.

On a final note, one other advantage that the E visa has over other nonimmigrant categories is the potential economic benefit that the spouse can contribute to the family. Since there is no derivative E visa category, the spouse and children are admitted in the same category as the principal E nonimmigrant. Effective January 16, 2002, E spouses are eligible for work authorization. To obtain an employment authorization document, the E spouse must file Form I-765 at the service center with jurisdiction over the spouse's place of residence. However, applications filed concurrently with Form I-129 principal must be filed with the California Service Center or Texas Service Center, as appropriate. E children, however, are not allowed to work in the United States.

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