January 27, 2009
Despite recent news, the US continues as a fertile grounds for foreign investors. Unemployment rates are relatively low in many US Cities including Columbus, Ohio and Washington, DC, where our firm maintains offices. There are several available visa alternatives for foreign investors seeking temporary employment in the United States. Below, our E1 & E2 investor visa attorneys focus on three viable investor options including Intracompany Transferee (L-1), Treaty Trader (E-1) and Treaty Investor (E-2).
The L-1 visa category is a temporary visa for Intracompany Transferees. It allows companies abroad to establish a presence in the United States by transferring a worker with a qualifying employment position, i.e., an “executive” or “manager” (an L-1A) or a worker with “specialized skill” (an L-1B), to a qualifying business such as a U.S. affiliate, parent, or subsidiary entity on a temporary work basis. The employee must have worked for the foreign company for one continuous year out of the preceding three years. Larger multi-national corporations who frequently transfer employees may seek a “Blanket L-1” which allows it to transfer executives rather quickly. Finally, executives and managers may seek permanent residency (a “green card”) under requirements which mirror those under L-1.
The qualifying employment positions necessary for the L-1 visa are narrowly defined terms under Federal law that must be rigidly followed when applying for this category. Generally, “managers” and “executives” are higher-level employees who have significant managerial, supervisory and policy making authority. A person with “specialized knowledge” is a vital employee with unique knowledge of the company product or service that does not meet the definition of an executive or manager. It is not necessary for the employee to have held the same position abroad as the intended job in the U.S., as long as the employee was a manger, executive or worker with specialized knowledge and continues to be one of those qualifying positions in the U.S. company. L-1B workers can remain in the U.S. up to five years, while L-1A executives and managers are allowed to stay for up to seven years.
It is also necessary to prove there is a “qualifying business relationship” between the foreign and U.S. companies which means that the relationship is either one of parent/subsidiary or affiliate. Key corporate documents will therefore be necessary components of the application. Federal Regulations allow a new parent, subsidiary, branch or affiliate office in the U.S. to employ a manager or executive under a “new office” petition which will only be approved for one year. Thereafter it may be extended upon proof that the business is active and operating and requires an executive or manager.
Another option for foreign investors and traders is the “E” visa category. The E-1 (Treaty Trader) and E-2 (Treaty Investor) provide nonimmigrant (temporary) visa status for nationals of countries having commercial treaties with the U.S. to engage in trade or business investment activities. In order to qualify under either E-1 or E-2, the person must be a citizen of a treaty country of which there are over 125. One of the principal advantages of the “E” visa category is that once approved for E status, the visa holder is admissible for two years, but may receive indefinite extensions up to two years at a time. A person may qualify as the principal trader or investor or as an employee of a trader or investor company having the same nationality (determined by Federal Regulations).
The E-1 classification is for a person coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the foreign state of which s/he is a national. The trade involved must be an international exchange of items of trade for consideration between the U.S. and the treaty country. Pure domestic trade will not suffice. It must also be “substantial trade,” i.e., the international trade must have a sizeable and continuous flow of trade. When the U.S. places an economic embargo or sanctions on a country (e.g., Iran), the country’s E-1 privileges are often rendered inoperable.
The E-2 classification is set aside for a person coming to the U.S. solely to direct and develop the operations of an enterprise in which s/he has invested, or is actively involved in the process of investing, a substantial amount of capital. The E-2 visa holder can be the investor, or an employee of the individual or company that is making the investment.
The E-2 visa holder’s investment must derive from investor controlled funds, and it must be “at risk,” in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed. There is no minimum dollar requirement for the amount of the investment but it must be substantial in that it is sufficient to ensure the successful operation of the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionally, the investment must be to be considered a substantial amount. Federal Regulations suggest that if the total investment is $100,000 or less the E-2 investor should provide 100% of the investment.
The E1 & E2 investor visa lawyers at Shihab & Associates, Co., LPA have represented investors in complex multimillion dollar enterprises as well as small ones before the US Citizenship & Immigration Services as well as consulates around the world.