E-1: The ratification of ‘Friendship, Commerce and Navigation’ treaties between the United States and foreign states have allowed for foreign nationals to obtain the E-1 visa based on their substantial trade with the United States. The purpose of these treaties is to encourage trade between the participating nations and thus boost the economy of both. This visa allows for foreign nationals (either individuals or entities) to work in the United States to develop and enhance their trade with the United States. The E-1 visa also allows for certain employees of the entity and family members of the trader to come to the United States as dependents on the E-1 visa and obtain work authorization if needed.
To qualify for the E-1 visa:
- The trader (or at least 50% of owners of the entity) and employees must be nationals of a country that has engaged in a treaty of commerce and navigation with the United States. Please note that it is not required for family members to hold the same nationality as the trader or employee.
- The trade must be substantial. As in, the trade must have a steady flow of ample international trade items that consist of numerous transactions over time. Each transaction need not be significant in monetary value or volume.
- The principle trade for traders must be with the United States. In other words, the business between the United States and the trader must amount to over 50% of all of his trades.
Trade is not limited to the trade of goods. The following is qualifies as trade items for an E-1 Visa: goods, services, international banking, insurance, transportation, tourism, technology, and its transfer and news-gathering activities.
Only a qualified employee may come to the United States on an E-1Visa. To be a qualified employee the employee must:
- Be of the same nationality as the principal alien employer,
Must engage in duties that are executive or supervisory in nature or if engaged in lesser duties than they must have special qualifications, and
- Must intend to depart the United States at the termination of their E-1 Visa status.
Duties would be considered to be executive or supervisory in nature if they allow for the employee to have ultimate control and responsibility of the entity’s overall operations or a major component of the entity. An employee would be considered to have special qualifications if those skills are essential to the operations and business of the entity. Examples of special qualifications are, but not limited to: expertise in an area of operations, the rarity of the skills possessed, salary, and the lack of availability of these skills in the United States.
A trader may only work for the entity and the job discretion for which they have been approved. An employee, however, must only work in the position for which he was granted the E-1 visa but may work for the entity’s parent company or subsidiary. This is only allowed when the subsidiary has a necessity for the employee given his position and/or special qualifications. The dependents on an E-1 visa are not required to work for the petitioning entity. In order to work, they must file for work authorization. Upon its approval, they are free to work for whomever they like.
Finally, an E-1 Visa can be filed for both within the United States or through consulate processing. It is advised that if one choose to file through consulate processing that they do so in the country of which they are resident. An E-1 visa is valid for a period of 2 years and has no limitations on renewal.
E-2: This visa is available to nationals from a foreign state that has signed a Commerce and Navigation Treaty with the United States. This visa requires that a substantial investment be made by the investor in order to qualify for the E2 visa. This visa is available to certain employees of the investor or qualifying organization. The visa is valid for a two year period and can be renewed indefinitely so long as the original criteria are still satisfied.
To qualify for E-2 classification, the treaty investor must:
- Be a national of a foreign state that maintains a treaty of commerce and navigation with the United States.
• Must investor in the process of investing a substantial amount of capital in a real operating enterprise located within the United States.
• Must have control of funds, loans secured with assets of the investment enterprise will not suffice.
• Must be entering the United States with the intent to develop and direct the enterprise. There must be at least 50% ownership in the enterprise by the investor or they must hold a managerial/executive position that holds operational control
An investment by the foreign national may be anything from funds to other assets that are at risk for the purpose of gaining profit. An investment is considered to be at risk if it is subject to partial or complete loss. An investment must be made to an entity that will produce an income greater than that what is needed for a minimal living for the investor and his family. This income must be generated within 5 years of the investment date. The investor may not have an additional income to support himself or his family unless his spouse has obtained a work permit. An investment is considered to be substantially based on its proportionality to the overall cost of the entity. For example, if the cost of the entity is low than a higher investment, in relation to the overall cost, it would be considered substantial. However, when the cost of the entity is high than an investment would be substantial when it equates to a low percentage of the overall cost.
An employee who must reside in the United States for an extended period of time to oversee or work for an enterprise that represents a substantial investment in the United States can qualify for an E-2 visa when:
- He holds the same nationality as the petitioning alien employer, which is the nationality of a foreign state that maintains a treaty with the United States.
• He holds a position that is executive or supervisory in nature or holds special qualifications if employed in a lesser capacity.
A principal alien employer need not be an individual. An entity may be the petitioning alien employer for an employee so long as 50% of the ownership of the entity is made up of individuals that hold the same nationality of the treaty holding foreign state. A position is considered to be executive or supervisory in nature when the position holds control of the entity’s operations or a major component of it. To hold special qualifications, an employee must hold skills that are considered to be essential for operations or the success of the invested entity.
Spouses and children under the age of 21 are eligible for a dependents visa based on the E-2 visa holder. It is not required that spouses and children be of the same nationality as the E2 visa holder. Spouses may also apply for a work authorization permit; however children under the age of 21 may not apply. Spouses are not restricted to work for the entity invested in, their approved work permit allows them to work freely.
EB-5: The EB-5 Investment Visa was created by the Immigration Nationality Act of 1990 that allows foreign investors to apply for a green card due to substantial monetary investment into the United States. Though it may sound like an easy ticket into the United States, this visa program has stringent requirements that must be met to obtain a green card.
The first step in this lengthy process is that the investor must make, or in the process of making, a substantial investment into the United States economy. He must make an investment of $1,000,000 into the United States economy unless he invests in a targeted employment area which requires an investment of $500,000. A targeted employment area is defined as at the time of investment, a rural area or an area that has an unemployment rate of at least 150% of the national average rate. An investment of either $1,000,000 or $500,000 is no small fleet. Therefore, the statute allows for multiple investors to meet this requirement provided that the commercial enterprise is principally doing business and that the investment made by each individual seeking an EB-5 Visa creates 10 jobs for qualified U.S. workers.
The investor must make his investment into a commercial enterprise by:
Creating an original business,
Purchasing an existing business that results in a new commercial enterprise through simultaneous/subsequent restructuring or reorganization,
Investing in a troubled business,
Investing in an enterprise that will expand the net worth or number of employees by at least 140% from its pre-investment value, or
Investing in a Regional Center.
As stated above, the amount that must be invested in the new commercial enterprise is determined by where the investor makes his investment. The investor is not required to invest more than $500,000 if he makes his investment in a Targeted Employment Area. Congress has required USCIS to reserve 30% of the EB-5 Visas allocated specifically for Targeted Employment Areas.
Next, the investor must obtain an approved I-526, Immigrant Petition by Alien Entrepreneur. Then he, and his dependents, must either apply to adjust their status (I-485) in the United States through USCIS or apply for an immigrant visa (DS-230) through the Department of State. Upon the approval of either of these applications, the investor and his family are granted a two year conditional permanent resident status.
During the two years of conditional permanent resident status, the investor must have the investment made in full (if he has not done so prior to his I-526 application) and hire 10 U.S. workers. Meeting these requirements lifts the conditions set by the US government on the investor for his legal permanent resident status. The capital investment made must create at least 10 jobs for qualified U.S workers; this does not include undocumented workers and nonimmigrant workers (such as H-1B and L-1 visa holders). Employment of the investor and/or his immediate family members does not count towards the 10 U.S workers quota set. Therefore, prior to the end of the investors two years conditional permanent resident status, the investor must hire, or prove that he will hire within a reasonable time, 10 qualified U.S. workers for the commercial enterprise and completely invest the required capital for his commercial enterprise.
90 days prior to the end of the two years, the investor must file to remove the conditions on his legal permanent resident status (I-829). Here, the investor must provide documentary evidence showing the fulfillment of the requirements set by the conditional permanent resident status. Approval of the I-829 form will grant him a full legal permanent resident status in the United States. This marks the end of the investor’s road to legal permanent resident status in the United States.
A unique way for an investor to obtain his legal permanent resident status through the EB-5 Visa is for him to invest in a Regional Center. Regional Centers are economic entities, either public or private. Entities become Regional Centers through an application process with USCIS and an annual supplemental form to prove continued eligibility. They are designated by the U.S. government to promote economic growth, improve regional productivity, create jobs and increase domestic capital investment. Essentially, by investing in Regional Centers, investors demonstrate that their investment in an approved Regional Center provides for economic growth and will directly or indirectly create jobs through the revenues obtained. It is noted, however, that there is no guarantee that investing through a Regional Center will grant the investor unconditional legal permanent resident status. Despite the investment, it must still be proven that the investor’s money was truly at risk and that at least 10 qualified U.S. workers were hired.