E-2 TREATY INVESTORS – A VIABLE ALTERNATIVE TO PERMANENT RESIDENCY

An E-2 treaty investor visa is a nonimmigrant visa which allows foreign entrepreneurs from treaty nations to enter into the United States and participate in substantial trade. This E-2 visa basically allows business owners, managers and employees to remain in the US for extended periods of time to oversee their investment or enterprise. The visa is renewable every two years and there is no restriction as to the number of times the visa can be renewed. To qualify, the foreign national must be from a country that holds a bilateral investment treaty with the United States. All the EU nations, including the United Kingdom, along with the Scandinavian countries qualify. Select countries from Latin America, Africa, Eastern Europe and the Middle East also have eligibility. You will need to check with an immigration attorney or the US Department of Homeland Security to see if you are from a qualifying country.

The purpose of the operations of the trade can also be to develop and direct the operations of an enterprise in which the alien has invested, or is in the process of investing under the provision of the Immigration and Nationality Act. The investment activities include the purchase of a new business, of which the investment must be significant to ensure the successful operation of the enterprise and should be proportional to the total investment. The investment should be more than half the total value of the enterprise or, in the case of a new business, the investment amount should be sufficient to ensure the successful operation of the enterprise. There are certain amounts of capital investment and the percentage of ownership the USCIS will use to determine if the investment does meet the “substantial” threshold. Please consult with an immigration attorney to see if you meet those guidelines.

As a general basis, the alien applying for the visa should be serving the company in a supervisory or executive capacity in nature that involves skills which is essential to the operation of the business, in other words, the alien should be a key employee, or owns at least 50% of the company.

The percentage of ownership is increased where there is a low cost business enterprise. In these situations, the capital investment and ownership must be higher than the percentage of investment in a high cost-enterprise; this is to ensure that the investment is substantial.
The alien’s investment must be a real operating enterprise; applicant will not qualify with speculative or idle investment, just the same uncommitted funds in a bank account or similar security are also not considered an investment.

The investment made should not be marginal, the investment should have the capacity to generate a significant amount of income; more than the amount needed to provide everyday living expenses for the investor and his family, and in other words it should have a significant economic impact in the United States. The investor must be in control of the funds, the funds should not be one that is secured by the assets of the enterprise.
The E-2 investor does not require a specific amount of employees, but cannot be just a marginal investment either. In most circumstances, 2-3 employees are sufficient to meet this threshold. Other positive aspects to this visa are that a spouse can receive employment authorization, and minor children can attend public schools.

Applicants applying for the E-2 Investor visa would need to make an application at the U.S. Embassy Consulate that has jurisdiction over their place of permanent place of residence. Applicant can also apply at any U.S. Consulate abroad, however it may be more difficult to qualify outside of one’s permanent residence. An interview at the United States Consular office where application was made is required as part of the application process for applicants 14 and 79 years of age; however, applicants age 3 and younger as well as applicants age 80 and older are not required to do an interview unless requested by the consulate office. Each applicant applying for an E-2 investment visa should complete and print the following forms; online Nonimmigrant Visa Electronic Application Form DS-160, Nonimmigrant Treaty/Trader Investor Application Form DS-156E, a passport valid for travel to the United States with a validity date of at least 6 months and beyond the applicant’s intended period of say within the United States, unless country specific agreements provided exemptions. If more than one person is included in the passport each form must complete a copy of each the applications. Along with the completed application forms each applicant is also required to submit 1 (2×2) color photograph. The application cost or each applicant is $390.00, all U.S. Immigration fees are quoted in U.S. Dollars.

An applicant applying for a Treaty Investor (E-2) visa must first establish that the investment enterprise meets the requirement of the law, and complies with the requirements of the E visa classification. Special forms may be required by the Consular Officer for the sole purpose of establishing adequate eligibility, as well as requesting additional documentation which may also assist them to determine eligibility. It is not possible to specify the exact documentation needed by the Consulate as each circumstance varies by applicant.

Applicants please remember that attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in permanent refusal of a visa or denial of entry into the United States.

There are certain activities which may result in being ineligible for a U.S. visa. However, in some instances an applicant who is ineligible, but is properly classified for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if and when the waiver is approved. If the Consular Officer should find it necessary to refuse an applicant the issuance a visa, the applicant may make a new application if there is new evidence to overcome the denial. In the absence of new evidence Consular Officers are not obliged to re-examine such cases.

Spouses and unmarried children under the age of 21, regardless of nationality may receive derivative E visas to accompany the principal visa holder. The spouse of an E visa holder may apply to the Department of Homeland Security for employment authorization, however, dependents children are not authorized to work in the United States. Please see website for list of treaty countries for review, americanlaw.com/treatylist.

If you are considering applying for this type of visa, it is highly recommended to hire a skilled immigration attorney to assist in the preparation of these petitions.

This article was written by the assistance of the following websites
Americanlaw.com/treatylist, Retrieved on March 29, 2011 Travel.state.gov/visa/temp/types/types, Retrieved on March 30, 2011

A BASIC OVERVIEW OF AN EB-5 INVESTOR VISA

This article provides basic information related to an EB-5 Investor visa and its benefits. For those investors with $500,000.00 US to $1,000,000.00 US, they may be able to obtain Permanent Residency in the US in less than three years.
There are two monetary investment options for the investor. For those individuals willing to invest in an area defined by the USCIS as a “targeted employment area”, the required investment is $500,000.00 US. A “targeted employment area” is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate. This can also include a rural area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census. Individuals can also seek a “TEA” designation if not already defined by the USCIS. For all others investing outside a “TEA” defined zone, the required investment will be a minimum of $1,000,000.00 US.
In addition to the monetary investment, there must also be the creation of a minimum of ten full time employees for the business. They can be either US citizens or US permanent residents, but not family members. The USCIS will verify these ten employees are being maintained by the company before final approval of the complete green card.
The next consideration of the investor is whether they will desire to be directly or indirectly involved in their investment. If they are going to open a business on their own, they will require hiring a professional business planner to develop and assist with document submissions to the USCIS. Expect to pay $7000.00 for these support services. In addition, this individual will be working full time to oversee the business and its employees.
For those individuals who do not want to be directly involved in their investment, they can invest their monies in USCIS EB-5 approved Regional Investment Centers. These center offer various projects the monies can be invested in, including “TEA” projects and assist with providing documentation to the USCIS. An attorney cannot select or recommend a particular project to invest in, as it is the investors duty to conduct their own fiduciary research. The investor needs to be diligent to select a sound project as the total investment monies could be lost, or the project fails to attain required employment goals or profitability, thereby resulting in the failure to obtain permanent residency.
When an individual has selected an appropriate investment, the attorney assists with the preparation of the USCIS petitions. The investor ,within six months , receives a conditional green card valid for two years. Prior to the expiration of the two years, documentation evidencing the continued employment of the ten employees and financial viability of the investment are examined. If all conditions have been met, the investor is then given complete US residency.

UNLAWFUL PRESENCE WAIVERS BEGIN MARCH 4TH

After a year of waiting, the USCIS has finally set a start date for applicants who illegally entered the US to apply for unlawful presence waivers based upon their family relationship as the Spouse of a US Citizen , a Parent of a US Citizen (child over the age of 21) and a Minor Child of a US Citizen.

The importance of this new program is that the applicant can remain in the United States and await the ruling on the I-601 waiver which is based upon the grounds of extreme emotional harship to the US relative if they were separated for an extended period of time.  Essentailly, illegally entering the US results in a bar to admission.  Once granted, the applicant would still have to return to their home country for a visa interview at the embassy, but they would have the approved waiver in hand to allow them to re-enter the US.

It is important to remember there could be other factors that could impact admissibility, such as a criminal conviction, which they waiver would not cover. But if the only issue was the illegal entry into the US, the waiver allows the re-entry into the US where the subsequent petition to adjust to permanent residency can be filed and adjudicated at a local USCIS office.

Any person considering applying for this program should retain an immigration attorney to assist with the preparation of the waiver. Do not attempt to hire a notario or do it yourself. There are specific documents and legal arguments that need to be included in the waiver packet for you to have the greatest chance of success. 

What is an “immediate relative” for immigration purposes?

For my clients that are US citizens,  I have been asked who are “immediate relatives” for immigration purposes and why that is an important classification.

Sec 201 of the INA states that the following immediate relatives can be applied for by a US citizen, without having to wait for a visa number to become available. These “immediate relatives” can be :

1. Spouses of U.S. Citizens;

2. Children under the age of 21 of U.S. Citizens;

3. Parents of US citizens; and

4. Spouses of deceased US citizens that were married at least two years.

By fitting into this category the immediate relative bypasses the wait times for visa’s that would be required.  Please feel free to contact my office if you are a US citizen and wish to apply for an immediate relative.

“Continuous Residency” for US Citizenship

This morning while I was reviewing a client’s passport as to the length of time he had spent abroad , when the issue of “continuous residency” arose as I saw that he had been out of the US for longer than six months during the last five years. He asked what are the consequences of being out of the US for longer than six months as it relates to my N-400 petition for Naturalization?

One of the requirements of obtaining US citizenship is that you have been a permanent resident in the US for five years. If you obtained permanent residence through marriage,  then the time requirement is reduced to three years.

It is important during your term of permanent residence to not be outside of the US for longer than six months at a time. If you stay outside of the US for longer than six months, you may be not just putting your permanent residency at risk, but you are also re-setting the time period for you to be eligible to apply for citizenship. The USCIS deems absences of 6-12 months to create a presumption that you have broken the continuity of residence and may re-set the five or three year continued residency requirement. Over a year outside the US by law will be deemed as having broken the continuity of residency thereby automatically re-setting the five or three year continued residency requirement.

 

 

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Considerations Before Applying For US Citizenship

I have clients that have been permanent residents in the U.S. and now want to apply for their naturalization. I always ask them some two very important questions before they apply. These questions are:

1. How did you become a permanent resident? The reason for this questions is to find out if they obtained their residency through marriage or an employer. If it had been through marriage, is the resident still together with the U.S. citizen and if not, why? Remember during an USCIS naturalization interview, if an immigration officer suspected the marriage was for fraudulent purposes, you could wind up in removal. Also, if residency was obtained through an employer, what evidence do you have to show that you were employed for a reasonable amount of time.

2. Have you been arrested or convicted of a crime since obtaining your permanent residency? With the increased attention to residents with criminal convictions, some of those arrests or convictions could classify you as an aggravated felon, or having committed crimes of moral turpitude also subject to removal from the U.S.

If you have any of these issues related to your residency, please contact an immigration lawyer before attempting to file your N-400 for Naturalization. The USCIS does a complete criminal search through all US law enforcement databases and you cannot hide any criminal history from them.

Fiancee and K Visas

I have a number of clients that have met and fallen in love with women they have met over the internet. I always tell them to first check them out with a local private investigator in the country they are residing. The internet dating game needs to be played cautiously as there are a number of scammers that work the internet dating websites and are only interested in taking your money. Also, stay away from marriage brokers as you will also be subjected to heightened security. If your international love interest checks out, then I recommend a trip to their country to meet them in person. The USCIS will want to know that you have both met in person prior to filing for the K or Fiancee visa. Make sure you take plenty of pictures together and save your cards and emails to present you have a bona fide good faith basis to get married within 90 days of your fiance arriving in the USA.

If all goes well upon your return you can file a petition for a fiancee visa. The petition will be processed in the U.S., then if approved, will be forwarded to the embassy in your fiancee’s country of residence. This takes about six months. From there, an approval notice will be sent to your fiancee within ninety days advising of the additional documentation and requirements for the interview. I also advise to also fly in to attend the interview with your fiance. If all goes well a 90 day visa will be approved for entry into the USA. You must get married within 90 days or if things dont go well then have your ex-fiance return to their country of residence.