By: Betty Chu, Esq.
Recently, an entrepreneur came to us for advice on how to set up his new business in the U.S. so as to qualify for an E-2 investor visa. He has a start-up business that sells oral hygiene products and relies heavily on distributorship. We discussed his business plans, marketing goals and determined realistic 1 to 3 to 5-year expansion plans. It was also crucial to define the scope of the Beneficiary's job duties as the first essential personnel who will be responsible for establishing the initial distributorships for his products. Despite being a new business with no record of past performance, we were able to get his case approved within 10 days! This is only one of our many successes with E-2 investor visas.
Increasingly, the USCIS and consulates are closely reviewing the type of duties to be performed by the investor applicants to assure that they are eligible for E-2 status. Moreover, a smaller investor and the investor still in the process of forming the investment company must present significantly more evidence to convince the USCIS that an actual viable business is being established. For example, the types of financial transactions making up the investment; evidence of ongoing negotiations; market research study by a professional consulting firm, etc. This is especially true when the investment enterprise has not yet employed any U.S. workers.
Those qualifying for the E-2 Investor visas can establish, plan and manage long-term business goals while in status as an E-2. if an applicant meets the initial threshold requirements, the E-2 visa holder may also bring his or her spouse and children that are unmarried and under the age of 21. They are not required to be from a treaty country and are eligible to work and attend school while in the U.S. To qualify for E-2 Treaty Investor Visa the applicant must provide supporting documents to show:
- Evidence of the nationality of the investors from the qualifying nation -- Philippines is a treaty nation.
- Evidence of investment in the United States: Must show that the applicant or the company has made or is in the process of making a substantial capital investment in bona fide business enterprise in the U.S.
- Evidence that the applicant is either the principal investor who will direct and develop the enterprise, or an executive, supervisor, or employee whose services are essential to the efficient operation of the U.S. company.
- Evidence of Establishment: The proposed investment or business enterprise has the present or future capacity to generate more than enough income to provide minimal living for the investor and his or her family, or has present or future capacity to make significant economic contribution.
- Evidence of alien's qualifications: Typically a statement by the applicant or the applicant's attorney summarizing the alien's past experience and credentials and certified copies of school transcripts and any degrees awarded is required.
It is important to keep in mind that at the time of filing the change of status application, the treaty alien must remain in lawful status. If the applicant "overstayed" the authorized period of admission, he or she will be required to submit his or her visa application at the consulate located in the country of the alien's nationality.
Given the extensive documentation required for an E visa application, it is important to employ a legal professional who has experience in this area to help navigate the process. A case is only as strong as the documentation provided and we were able to ensure the success of our clients by discussing the finer details of their business plans with them. You should always hire a competent counsel that takes the time to understand your business and is willing to be your legal navigator.