A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Monday, September 10, 2018

H-1B Rejected? Maybe E-2 Visa is the Answer

Has your H-1B visa application been delayed or denied recently?  Maybe you did not even get selected in the H-1B visa lottery?  Perhaps your request to change or extend your non-immigrant status was rejected?  If so, you are not alone.  The Trump Administration's Executive Order on Buy American Hire American has made it more difficult for foreigners to apply for visas to enter the U.S.  

You may also consider the E-2 Treaty Investor (E-2) visa if you intend to invest or work in the U.S.   The E-2 visa is for foreigners to develop and direct the operations of an enterprise in the United States, or to work in the enterprise as an executive, supervisor, or essentially skilled employee.

Advantages of the E-2 Visa

Holders of the E-2 visa can enter, work and live in the United States for as long as their visa status is valid.  Their spouses and children may also live, work and study in the U.S.  Unlike the H-1B visa, E-2 visa does not have an annual visa limitation or a maximum period of employment.  Although the E-2 visa is not an immigrant visa, holders enjoy the most important benefits of green card holders.  Unlike the EB-5 investor immigrant visa, E-2 visa does not require a large sum of investment. 

Eligibility for the E-2 Visa

First, the E-2 Treaty Investor visa is only for citizens of specific countries that the U.S. has a commerce treaty with. Many countries have such trading treaty with the U.S. including most European and Asian countries.  Many South American and African countries are also eligible.  Although China and India are not eligible, their sister countries Taiwan and Pakistan are. It is not the country of birth that controls one's eligibility; it is the country of citizenship. For example, a person born in China or India may apply for E-2 visa if she has become a Canadian citizen later on in life.  

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Other Requirements for the E-2 Visa

An E-2 Treaty Investor visa applicant must show that she is investing a substantial amount of capital in a U.S. business.  A substantial amount of capital does not mean a specific amount, but it needs to demonstrate the investor's commitment to the success of the enterprise. The total costs of starting up such a business is an important factor to be considered. Generally speaking, the lower the startup cost of the enterprise, the higher the investment must be to be considered substantial.

The investment must also be subject to risks of loss. It means that the investor must place her funds in a position that she could actually lose money.  Examples include payments of non-refundable deposits on equipment or inventory.

The E-2 investor must also show that her investment comes from legitimate and lawful sources.  Gifts from family members are okay.  Borrowed funds can also be used as long as they meet certain legal requirements.  

Further, the applicant must show that she is very close to opening a real business in the U.S. Hence, rather than producing only a business plan, there must be proof that the investor is ready to start the business operations as soon as her E-2 visa has been approved.  Such proof may include hiring of employees, purchasing of inventory and leasing of commercial office spaces. 

Finally, the investor must show that the business operations are not only marginally sufficient to support herself and her family.  There must be a detailed and realistic plan to expand the business in the next few years by, for example, hiring additional U.S. employees. 

Qualifications of Visa Applicants

There are two categories of applicants for the E-2 Treaty Investor visa.  The first group includes the individuals who come to develop and direct the operations of the enterprise in the United States. They are generally the actual investors.  Although no general educational or professional qualifications are required for the E-2 visa, an investor must show that she has the required experience and skill-set to develop and direct the operations of the particular enterprise.

The second category of E-2 applicants are those who are coming to work in the enterprise as an executive, supervisor, or essentially skilled employee. Similarly, these applicants must show that they have the requisite executive, supervisory, or essential skills for the position before their E-2 visas can be approved. 

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