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Exchange Visitor Visas (J-1)
Global (non-U.S.) Immigration
The E-2 program is one of the most flexible visa categories available to the United States. It can even be used by recent college graduates who cannot obtain an H-1B work visa because of the H-1B cap. However, it is also one of the least utilized visa categories. If an individual or company can qualify under the E-2 program, it is our opinion that this is the approach that should be used.
Benefits of the E-2 Visa Process
One of the most flexible employment-based visas available to the United States is the E-2 non-immigrant investor visa. This visa can be used by anyone from 76 different countries who wish to invest in the United States by opening a business. Some of the benefits of this visa include:
Misconceptions About The E-2 Visa Process
There is a major misconception about the E-2 visa category. Many people (and even attorneys) believe that a minimum investment of $50,000.00 USD is required to qualify for an E-2 visa. This is not true. An example in the U.S. State Department’s regulations discusses a $50,000.00 investment. However, this is just an example. The actual standard is that sufficient funds must be invested to ensure the likelihood that the business will be successfully established within five years. This can be a much smaller investment than $50,000.00. For example, a graphic designer need not invest nearly as much money to successfully establish a company than someone who is purchasing a retail business.
The E-2 non-immigrant visa process is also oftentimes confused with the EB-5 “million dollar” investor green card process. These are not the same visas and do not require the same level of investment or employment of U.S. workers.
E-2 Investor Must Control the Company
An E-2 investor must “direct and develop” (i.e., control) the E-2 company. This can be shown either through ownership or through managerial control of the company. For example, if a treaty national owns more than 50% of an E-2 company, then that treaty national, by definition, controls the company. However, if a treaty national owns 50% of an E-2 company with a U.S. citizen or permanent resident, then neither party has a controlling interest in the company. In this case, it must be shown that the treaty national has managerial control over the company. This is more difficult to accomplish in a 50:50 ownership relationship. For this reason, Thompson Immigration generally recommends that the foreign owner of an E-2 company own at least 51% of the company.
The Definition of an "Executive"
An “executive” is an employee who:
The Definition of a "Manager"
A “manager” is an employee who:
The Definition of an "Essential Skills" Employee
An "essential skills" employee is one that has special qualifications that make their work at the E-2 company “essential” to the efficient operation of the U.S. enterprise. The determination of whether an employee is an “essential skills” employee requires the exercise of judgment. It cannot be decided by the mechanical application of a bright-line test. By its very nature, "essentiality" must be assessed on the particular facts in each case. In assessing the specialized skills of an employee and their essentiality, the government will consider the following factors:
The spouse and unmarried minor children of any E-2 visa holder may be admitted as an E-2 dependent non-immigrant. Family members must make a separate filing with the USCIS and/or U.S. Embassy or consulate to obtain E-2 status. A very significant benefit of the E-2 visa process is that the spouse of an E-2 visa holder is authorized to work in the United States. Any E-2 family member may attend school.
The E-2 Visa Process
Unlike most non-immigrant visas, a foreign national seeking to enter the U.S. on an E-2 treaty investor visa is not required to obtain prior approval from the U.S. Citizenship and Immigration Services ("USCIS"). They can apply directly to a U.S. Embassy in their home country. However, if an E-2 candidate is in the United States, he or she will typically apply with the USCIS and then file for an E-2 visa stamp at the U.S. Embassy in their home country. It is important to note that an applicant’s home country is the only country where an E-2 investor may apply for an E-2 visa.
Moreover, there is no limit to the number of times an E-2 visa can be renewed, so long as the company still qualifies as an E-2 company. As such, a foreign investor can remain in the United States their entire career.
List of E-2 Countries
Bosnia & Herzegovina
Trinidad & Tobago
Non-Immigrant Investor Visas
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