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Business Visa Options

E1 Visa – Treaty Traders

Nationals of qualifying treaty countries who undertake a significant amount of international trade with the United States may qualify for an E1 visa. The volume of trade must be sufficient to justify the trader or his/her employee(s) being in the United States to manage the trade. This volume must constitute the majority of the trader’s international trade (at least 50% of the Trader’s exports/imports must be to/from the USA). While there is no set minimum level of trade that is considered sufficient, from our experience the lower the volume of trade, the less likely an applicant is to qualify as a Treaty Trader.

Every year, the United States holds billions of commercial trading transactions with many countries in the world. Some countries are considered “Strategic Partners” and have treaties with the US in navigation, friendship and exchange of goods and services.

TREATY COUNTRIES:

ArgentinaChina (ROC)FranceItalyNetherlandsSweden
AustraliaColombiaGermanyJapanNorwaySwitzerland
AustriaCosta RicaGreeceKoreaOmanThailand
BelgiumDenmarkHondurasLatviaPakistanTogo
BoliviaEstoniaIranLiberiaPhilippinesTurkey
BruneiEthiopiaIrelandLuxembourgSpainU.K.
CanadaFinlandIsraelMexicoSurinameYugoslavia

Nationals of the listed countries can apply for an E1 visa to conduct significant business and trading with their country of origin and the US. The more substantial the trading, the most likely is to get the E1 visa approved.

WHO CAN QUALIFY FOR THE E1 VISA?

Traders must be nationals of the listed countries above and must be able to demonstrate:

  • There will be a substantial number of trade transactions between the US and the treaty country.
  • There will be a substantial dollar value to the trade between the US and the treaty country.
  • The majority of international trade transactions undertaken by the applicant will be between the US and the treaty country.
  • The majority of the dollar value of trade will be between the US and the treaty country.
  • The trader has sufficient business acumen and experience to develop and direct the trade.
  • The trader, and any other E1 staff, are able and willing to leave the US upon termination of their E1 status.
  • The trader has a past history of conducting trade between the US and the treaty country.

E2 Visa – Treaty Investor

Nationals of qualifying treaty countries who have made a significant investment in the United States may qualify for E2 Treaty Investor status. There is no set minimum level of investment which may qualify for E2 status, but from our experience the lower the investment the less likely the applicant is to qualify.

The level of investment must be sufficient to justify the treaty national or his/her employees presence in the United States. The investment must be in an operating business. The applicant must direct and control the business or hold certain management positions. A substantial part of the investment must have been made before applying for E2 status.

HOW TO QUALIFY FOR THE E2 VISA

To qualify for the E2 visa, the applicant generally must meet the following qualifications:

  • Nationality: The applicant must be a national of a country that maintains a treaty status with the United States. If you are unsure, you should check with our immigration lawyers to learn about the status of your home country.

List of E Treaty Countries

CountryClassificationEffective Date
AlbaniaE-2January 4, 1998
ArgentinaE-1October 20, 1994
ArgentinaE-2October 20, 1994
ArmeniaE-2March 29, 1996
AustraliaE-1December 16, 1991
AustraliaE-2December 27, 1991
AustriaE-1May 27, 1931
AustriaE-2May 27, 1931
AzerbaijanE-2August 2, 2001
BahrainE-2May 30, 2001
BangladeshE-2July 25, 1989
BelgiumE-1October 3, 1963
BelgiumE-2October 3, 1963
BoliviaE-1November 09, 1862
BoliviaE-2June 6, 2001
Bosnia and HerzegovinaE-1November 15, 1882
Bosnia and HerzegovinaE-2November 15, 1882
BruneiE-1July 11, 1853
BulgariaE-2June 2, 1994
CameroonE-2April 6, 1989
CanadaE-1January 1, 1993
CanadaE-2January 1, 1993
ChileE-1January 1, 2004
ChileE-2January 1, 2004
China (Taiwan)E-1November 30, 1948
China (Taiwan)E-2November 30, 1948
ColombiaE-1June 10, 1848
ColombiaE-2June 10, 1848
Congo (Brazzaville)E-2August 13, 1994
Congo (Kinshasa)E-2July 28, 1989
Costa RicaE-1May 26, 1852
Costa RicaE-2May 26, 1852
CroatiaE-1November 15, 1882
CroatiaE-2November 15, 1882
Czech RepublicE-2January 1, 1993
DenmarkE-1July 30, 1961
DenmarkE-2December 10, 2008
EcuadorE-2May 11, 1997
EgyptE-2June 27, 1992
EstoniaE-1May 22, 1926
EstoniaE-2February 16, 1997
EthiopiaE-1October 8, 1953
EthiopiaE-2October 8, 1953
FinlandE-1August 10, 1934
FinlandE-2December 1, 1992
FranceE-1December 21, 1960
FranceE-2December 21, 1960
GeorgiaE-2August 17, 1997
GermanyE-1July 14, 1956
GermanyE-2July 14, 1956
GreeceE-1October 13, 1954
GrenadaE-2March 3, 1989
HondurasE-1July 19, 1928
HondurasE-2July 19, 1928
IranE-1June 16, 1957
IranE-2June 16, 1957
IrelandE-1September 14, 1950
IrelandE-2November 18, 1992
IsraelE-1April 3, 1954
ItalyE-1July 26, 1949
ItalyE-2July 26, 1949
JamaicaE-2March 7, 1997
JapanE-1October 30, 1953
JapanE-2October 30, 1953
JordanE-1December 17, 2001
JordanE-2December 17, 2001
KazakhstanE-2January 12, 1994
Korea (South)E-1November 7, 1957
Korea (South)E-2November 7, 1957
KosovoE-1November 15, 1882
KosovoE-2November 15, 1882
KyrgyzstanE-2January 12, 1994
LatviaE-1July 25, 1928
LatviaE-2December 26, 1996
LiberiaE-1November 21, 1939
LiberiaE-2November 21, 1939
LithuaniaE-2November 22, 2001
LuxembourgE-1March 28, 1963
LuxembourgE-2March 28, 1963
Macedonia, the Former Yugoslav Republic of (FRY)E-1November 15, 1882
Macedonia, the Former Yugoslav Republic of (FRY)E-2November 15, 1882
MexicoE-1January 1, 1994
MexicoE-2January 1, 1994
MoldovaE-2November 25, 1994
MongoliaE-2January 1, 1997
MontenegroE-1November 15, 1882
MontenegroE-2November 15, 1882
MoroccoE-2May 29, 1991
NetherlandsE-1December 5, 1957
NetherlandsE-2December 5, 1957
NorwayE-1January 18, 1928
NorwayE-2January 18, 1928
OmanE-1June 11, 1960
OmanE-2June 11, 1960
PakistanE-1February 12, 1961
PakistanE-2February 12, 1961
PanamaE-2May 30, 1991
ParaguayE-1March 07, 1860
ParaguayE-2March 07, 1860
PhilippinesE-1September 6, 1955
PhilippinesE-2September 6, 1955
PolandE-1August 6, 1994
PolandE-2August 6, 1994
RomaniaE-2January 15, 1994
SerbiaE-1November 15,1882
SerbiaE-2November 15,1882
SenegalE-2October 25, 1990
SingaporeE-1January 1, 2004
SingaporeE-2January 1, 2004
Slovak RepublicE-2January 1, 1993
SloveniaE-1November 15, 1882
SloveniaE-2November 15, 1882
SpainE-1April 14, 1903
SpainE-2April 14, 1903
Sri LankaE-2May 1, 1993
SurinameE-1February 10, 1963
SurinameE-2February 10, 1963
SwedenE-1February 20, 1992
SwedenE-2February 20, 1992
SwitzerlandE-1November 08, 1855
SwitzerlandE-2November 08, 1855
ThailandE-1June 8, 1968
ThailandE-2June 8, 1968
TogoE-1February 5, 1967
TogoE-2February 5, 1967
Trinidad & TobagoE-2December 26, 1996
TunisiaE-2February 7, 1993
TurkeyE-1February 15, 1933
TurkeyE-2May 18, 1990
UkraineE-2November 16, 1996
United KingdomE-1July 03, 1815
United KingdomE-2July 03, 1815
YugoslaviaE-1November 15, 1882
YugoslaviaE-2November 15, 1882
  • Investment: The applicant must invest a substantial amount of capital in a U.S. business. The exact amount depends upon the type of business and location.
  • Position: The treaty investor E2 visa is not available to just any employee of a foreign business. The applicant must direct and control the business or hold certain management positions.

Generally, an E2 visa applicant is considered to have made an investment if the applicant placed money or other assets with an organization doing business in the U.S. The investment must be “at-risk” meaning that it may be subject to loss, and the investment must be made with the purpose of generating a profit and jobs in the U.S.

AMOUNT OF INVESTMENT

Investors must make a “substantial” investment to obtain an E2 visa. The investment may be either an investment in creating an enterprise or infusing funds into an existing enterprise. Immigration officials will look at whether the amount of funds are sufficient to ensure that the applicant has a stake in seeing the success of the investment and that the investor will take a role in directing and developing the enterprise.

DO I MERELY NEED TO PROVIDE USCIS WITH A BUSINESS PLAN AND A FUTURE INTENT TO INVEST FUNDS INTO THE U.S.?

No. Although a business plan is an important part of an E2 visa petition, for a new company, it is insufficient to indicate a future intent to invest a particular sum of money. As provided by applicable regulatory language, uncommitted funds are not considered sufficient even if proof of these funds are shown to exist in a bank account. In order to satisfy the E2 visa standards, the funds have to be irrevocably committed to the new enterprise.

HOW CAN I POSSIBLY IRREVOCABLY INVEST A SUBSTANTIAL SUM OF MONEY INTO AN ENTERPRISE IN THE U.S. IF I AM NOT SURE TO BE GRANTED THE VISA THAT ALLOWS ME TO ENTER AND OPERATE THE BUSINESS?

The regulations do make it clear that placing funds into an escrow account (a common type of third party holding account in the U.S.), will be considered satisfactory. So the way this could help is that a person could place their investment amount into an escrow account which irrevocably commits funds to a particular purpose, e.g. the purchase of office space or a store front, as long as a specific contingency is satisfied, such as being granted the E2 visa. This provides a legal mechanism by which the investor can show that funds have been irrevocably committed, while it protects the investor’s money in case the E2 visa is not granted, as the funds are then returned due to the failure to satisfy the contingency.

DO I HAVE TO INVEST ONE MILLION DOLLARS INTO A COMMERCIAL ENTERPRISE TO GET THE E2 VISA?

No. Many people confuse the E2 visa process with the EB-5 green card investment category. The EB-5 green card category is an immigrant visa petition which, if approved, provides the investor with Legal Permanent Residence.

For the E2 visa a substantial investment amount is required. The regulatory language does not provide a specific dollar amount, as opposed to the EB-5 category, however they do provide a test that is to be used. This test is termed the relative/proportionality test and considers the following elements:

(i) Whether the capital investment is substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;

(ii) Whether the capital investment is sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and

(iii) Whether the capital investment is of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital.

WHAT IF I INHERIT A BUSINESS THAT IS WORTH A SUBSTANTIAL SUM OF MONEY?

Unfortunately, inheriting a business in the U.S. does not qualify as an investment for E2 visa purposes, however, inherited funds can be used to in turn invest in establishing a U.S. commercial enterprise for E2 visa purposes.

DOES THE BUSINESS HAVE TO SHOW THAT IT WILL BE MAKING A CERTAIN SUM OF MONEY IN ORDER TO BE APPROVED?

Per the regulatory language, a commercial enterprise is not allowed to be marginal in nature. What this means is that a qualifying E2 visa commercial enterprise will have the capacity to generate more income for the investor and family then merely an amount required to live. Accordingly, whether the investment will create future job opportunities, and whether the enterprise will generate sums of money far above that which could be considered a living wage are important factors.

CAN I INVEST CAPITAL AND APPOINT A DIFFERENT PERSON TO ENTER THE U.S. AND OPERATE THE BUSINESS?

Yes, assuming that the person being appointed is of the same nationality as the treaty employer and is either (1) an Executive or Supervisor or (2) an Essential Employee.

WHO IS CONSIDERED TO BE AN EXECUTIVE OR SUPERVISOR?

Pertinent regulatory language provides that the position needs to be “principally and primarily” as opposed to merely “incidentally or collaterally” executive or supervisory in nature. The following considerations must be taken into account when determining whether the position satisfies the requirements:

  • Does the position provide the person authority to determine policy and direction?
  • Does the position provide supervision for a significant portion of the operation?
  • Does the position provide supervision over low-level employees or is it of a higher supervisory nature?
  • Does the person possess the proper executive/supervisory skills and experience?
  • What is the salary of the position?
  • What is the relationship of the position to the greater organizational structure?
  • What percentage of the persons duties are routine staff work?

WHO QUALIFIES AS AN ESSENTIAL EMPLOYEE?

To be considered an essential employee the person must show that they have a particular proven degree of expertise in the particular job duties required by the enterprise and that those duties are very specific in nature, thereby supporting the need for the particular persons abilities.


EB5 Investor Visa – Green Card

The EB5 investor visa program enables foreigners who make an investment in a U.S. business to obtain a green card and become lawful permanent residents, and eventual citizens, of the United States. The investment can lead to a green card for the investor to permanently live and work in the United States with their spouse and unmarried children under the age of 21.

Entrepreneurs (and their spouses and unmarried children under 21) who make an investment in a commercial enterprise in the United States and who plan to create or preserve ten permanent full time jobs for qualified United States workers, are eligible to apply for a green card (permanent residence).

Up to 10,000 EB5 investor visas may be authorized each fiscal year for eligible entrepreneurs.

You must invest $1,000,000, or at least $500,000 in a targeted employment area (high unemployment or rural area).  In return, USCIS may grant conditional permanent residence to the individual.

EB5 INVESTOR VISA ELIGIBILITY CRITERIA

You may be eligible to receive permanent residence based on investment if:

  • You have an approved Form I-526, Immigrant Petition by Alien Entrepreneur
  • You are admissible to the United States
  • An immigrant visa is immediately available

EB5 INVESTOR VISA APPLICATION PROCESS

If You Are Living Outside the United States
You can become a permanent resident through consular processing if you live outside the United States. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-526, Immigrant Petition by Alien Entrepreneur, petition when a visa is available.

If You Are Living in the United States
You can become a conditional permanent resident through adjustment of status if you live inside the United States. Once the Form I-526 is approved and a visa number is available, you can apply for conditional permanent residence on Form I-485, Application to Register Permanent Residence or Adjust Status.

Supporting Evidence for Form I-485

You should submit the following evidence/documentation with your application:

  • Two passport-style photos
  • Form G-325A, Biographic Information, if you are between 14 and 79 years of age
  • Copy of government issued photo identification
  • Copy of birth certificate
  • Copy of passport page with nonimmigrant visa (if applicable)
  • Copy of passport page with admission (entry) or parole stamp (if applicable)
  • Form I-94, Arrival/ Departure Record (if applicable)
  • Certified copies of court records (if you have been arrested)
  • Form I-693, Report of Medical Examination and Vaccination Record
  • Applicable fees
  • The approval notice for Form I-526 (Form I-797)

FAMILY OF ENTREPRENEURS

Your spouse and unmarried children under the age of 21, (known as derivatives) may be included on your immigration petition.  If they are residing in the US, they will each need to file a Form I-485. They are counted towards the annual cap of 10,000.

WORK & TRAVEL AUTHORIZATION

Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States and to seek advance parole (advance permission to travel and be admitted to the United States upon your return). For further information, see the “Work Authorization” and “Travel Documents” links to the left under “Green Card Processes & Procedures.”


L1A Visa for Managers and Executives

The L1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain employees from its foreign operations to US operations for up to 7 years. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US company outside of the US for at least one year out of the last three years.

There are two types of L1 visas. The L1A visa allows U.S. employers to transfer their foreign executives and managers to their offices in the U.S. The L1B visa allows US employers to transfer their professional employees with specialized knowledge to their offices in the US

As a firm, we have extensive experience with L1A visas and have provided the information below to give you a general overview of how and for whom this works. For more specific information or for answers to other questions, feel free to contact our law offices today.

EMPLOYER QUALIFICATIONS FOR A L1 VISA

Both the employer and the employee have to meet specific requirements to qualify for the L1A visa. The requirements for the employer include:

  • The U.S. employer must have a qualifying relationship with the foreign company such as being the parent company, being a branch of the foreign company, or otherwise have an affiliation with the foreign company.
  • The U.S. employer must be currently doing business in the U.S. as well as a foreign country for the duration of the employee’s stay in the U.S.

If the employer is seeking a L1A, it may not be necessary for the foreign company to show that it has current affiliations with a U.S. office. Instead, the employer can show that it is sending over an employee with specialized knowledge to help establish one.

EMPLOYEE QUALIFICATIONS FOR A L1A VISA

An alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge.

Qualifications that the employee must meet to qualify for a L1A visa include:

  • The employee typically must have worked for the foreign organization for at least one full year within the past three years of seeking admission into the U.S.
  • For the L1A visa, the employee must be in an executive or managerial role. An executive means that the employee can make decisions and does not require a lot of oversight. A manager typically refers to an employee who supervises and controls the workforce or component of an organization’s workforce.

BLANKET PETITION FOR A L1A VISA

A petitioner that meets the following requirements may file a blanket petition seeking continuing approval of itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:

  • The petitioner and each of those entities are engaged in commercial trade or services;
  • The petitioner has an office in the United States that has been doing business for one year or more;
  • The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
    • The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten “L” managers, executives, or specialized knowledge professionals (L1B Visa) during the previous 12 months; or
    • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
    • Have a United States work force of at least 1,000 employees.

Spouses and children of the L1A visa holder may obtain an L2 visa to enter and remain in the US. L2 Spouses may apply for a work permit while residing in the United States in L2 nonimmigrant status. L2 spouses and children may also attend school in the US.


L1B Visa for Specialized Knowledge Staff

The L1B visa is suitable for special knowledge employees who have a detailed understanding of the company’s products and services, as well as the international markets for their products and/or services. The L1B visa beneficiary can have advanced knowledge of procedures and operations of the company, or demonstrate extensive experience with software or proprietary technologies that can only be obtained through years of experience with the employer. The L1B visa is initially valid for three years (or one year for new offices) and can be extended to a total stay of five years.

Although the L1B visa was designed for large multinational corporations, it may also be used by smaller companies with needs to send upper level personnel to the United States.

A petitioner that meets the following requirements may file a blanket petition seeking continuing approval of itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:

The petitioner and each of those entities are engaged in commercial trade or services;
The petitioner has an office in the United States that has been doing business for one year or more;

The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten “L” managers, executives, or specialized knowledge professionals (L1A Visa) during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees.

Spouses and children of the L1B visa holder may obtain an L2 visa to enter and remain in the US. L2 Spouses may apply for a work permit while residing in the United States in L2 nonimmigrant status. L2 spouses and children may also attend school in the US.

WHAT ARE THE REQUIREMENTS FOR OBTAINING AN L1B VISA?

An alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a position requiring specialized knowledge.


Helping You with all Your Business Visa Needs

When you contact our firm for an initial consultation, we will take the time to educate you and explain to you the US business visa options, immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service).

As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.

For all of your legal immigration needs, contact the immigration lawyers of Muston & Jack, P.C., at our San Jose, San Francisco or Los Angeles California law offices to schedule an initial consultation.


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