E 2 powerpoint presentation final - 3-1-14

© 2014, Fakhoury Law Group, PC

March 1st, 2014

FAKHOURY LAW GROUP

E-2 INVESTOR VISA IMMIGRATION SEMINAR

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Disclaimer_______________________________________________________

The materials contained in this PowerPoint do not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.


About Us_______________________________________________________• Founded in 1997 - Global staff of

over 60 attorneys, paralegals and immigration consultants

• Premier-AV Rated Immigration law Firm

• Leaders in providing Global Immigration Services for over 100 countries

• Multi-national presence with offices and partners around the globe

• ISO 9001-2008 certified

Lean Processes

and Technology

Outstanding Value

Proposition

Exceptional Legal

Expertise


Introduction to E-2 Investor Visa Category_______________________________________________________An E-2 treaty investor visa is a nonimmigrant visa that enables a

national of a treaty country (a country with which the United States

maintains a treaty of commerce and navigation) to be admitted to the

United States based on an investment he or she will be controlling

while inside the United States.


E-2 Investor Visa Requirement_______________________________________________________In order to qualify for E-2 Investor Visa:

1) Requisite treaty must exist;2) Individual and/or business possess the nationality of the treaty country;3) Applicant has invested or is actively in the process of investing;4) Enterprise is a real and operating commercial enterprise;5) Applicant's investment is substantial;6) Investment is more than a marginal one solely for earning a living;7) Applicant is in a position to "develop and direct" the enterprise;8) Applicant, if an employee, is either in a managerial position or possesses

essential skills to the firm's operations in the U.S.; and9) Applicant intends to depart the United States when the E-2 status

terminates.Source: 9 FAM 41.51 N1.2

EuropeAlbaniaArmeniaAustriaAzerbaijanBelgiumBosnia & Herzegovina BulgariaCroatiaCzech- RepublicDenmarkEstoniaFinlandFranceGeorgiaGermanyIrelandItalyKosovoLatviaLithuaniaLuxembourgMacedoniaMoldovaMontenegroNetherlands


Requisite treaty must exists between USA and … _________________________________________________________AfricaCameroonCongo (Brazzaville)Congo (Kinshasa)EgyptEthiopiaLiberiaMoroccoSenegalTogoTunisia

AsiaBahrainBangladeshChina (Taiwan)IranJapanJordanKazakhstanKyrgyzstanMongoliaOmanPakistanPhilippinesSingaporeSouth KoreaSri LankaThailandTurkey

EuropeAlbaniaArmeniaAustriaAzerbaijanBelgiumBosnia & Herzegovina BulgariaCroatiaCzech- RepublicDenmarkEstoniaFinlandFranceGeorgiaGermanyIrelandItaly

North AmericaCanadaCosta RicaGrenadaHondurasJamaicaMexicoPanamaTrinidad & Tobago

OceaniaAustralia

South AmericaArgentinaBoliviaChileColombiaEcuadorParaguaySuriname

E-2 Treaty Countries

KosovoLatviaLithuaniaLuxembourgMacedoniaMoldovaMontenegroNetherlandsNorwayPolandRomaniaSerbiaSlovak-RepublicSloveniaSpainSwedenSwitzerlandUkraineU.KYugoslavia

Source: http://travel.state.gov/content/visas/english/fees/treaty.html#


Individual and/or Business must Possess the Nationality of the Treaty Country _______________________________________________________Individuals: • The nationality of the individual is determined by the authorities of the

country of which the Foreign National claims nationality;• National of the treaty country MUST own at least 50% of the business;• Foreign Nationals who are also U.S. permanent residents cannot be

counted toward determining at least 50% ownership.

Business:• The nationality of a business is determined by the nationality of the

individual owners of that business;• The country of incorporation is irrelevant to the nationality

requirement for E visa purposes;• Both individual and company must satisfy the 50% rule.

Source: 9 FAM 41.51 N3.1


Dual Nationality of the Treaty Investor_______________________________________________________• A business can only have one qualifying nationality for E-2 visa

status. Unless, the enterprise is owned and controlled equally (50/50) by nationals of two treaty countries.

• For dual national owner(s), a choice must be made as to which nationality should be used.• Once the nationality is chosen, all owners and E visa

employees must possess the nationality of the single E visa qualifying country (even if they possess the nationality of another E visa country).

• When a company is equally owned and controlled by nationals of two different treaty countries, employees of either nationality may obtain E visas to work for that company.



Applicant Must Invest or be in the Process of Investing _______________________________________________________

Possession and Control of the Funds• Applicant must demonstrate possession and control of the funds,

including the funds already invested in the enterprise (Ex. Savings, gift, inheritance, etc.)• Inheritance of a business does not constitute an investment;• Source of funds can be either from outside of the USA or inside.

Investment Connotes Risk• Foreign National investment must be at risk

• If the business goes bad and the funds are not subject to partial or total loss, then it is not an “investment;”

• Funds must be irrevocably committed; • Mere intent to invest, or uncommitted funds in the bank account,

or even prospective investment arrangements, entailing no present commitment, will not suffice.

Source: 9 FAM 41.51 N8.1-1


Qualifying Investment vs. Non-Qualifying Investment _______________________________________________________

Qualifying investments Non-qualifying investments

Loans secured by the investor’s own assets, such as a mortgage on his or her real property.

Mortgage debt or other loans secured by the enterprise assets.

Unsecured loans granted on the basis of the investors signature.

Loans for which the lending institution has recourse against a guarantor in the event of nonpayment by the investor.

Value of purchased equipment and property. Cash not held in reserve by the corporation, such as cash held in personal bank accounts.

Cash reserves placed in a business account at the disposal of the business for purchase of equipment, property, or start-up inventory. (Note: cash reserves alone, without evidence that the business enterprise has been undertaken, will not satisfy the requirement of an “active” investment.)

Rental payments, inventory purchases, and other recurring costs beyond start-up of the enterprise. Such costs are assumed to be paid out of income generated by the enterprise, and are not a part of the investment attributable to the investor.


Business Loans and Indebtedness _______________________________________________________

Q. Does mortgage debt or commercial loans secured by the assets of

the enterprise count towards the investment?

R. No, because there is no requisite element of risk. For example, if the business in which the Foreign National is investing is used as collateral, funds from the resulting loan or mortgage are not at risk, even if some personal assets are also used as collateral.

Q. What does count toward the investment?

R. Only indebtedness collateralized by the Foreign National’s own personal assets, such as a second mortgage on a home, or unsecured loans, such as a loan on the Foreign National personal signature may be included, since the Foreign National risks the funds in the event of a business failure.


Enterprise must be a real operating commercial enterprise______________________________________________________

• The enterprise must be real a and active commercial enterprise;

• The enterprise must produce some service or commodity;

• The enterprise cannot be a paper organization or an idle speculative investment;

• The enterprise must be for profit, thus, eliminating non-profit organizations from consideration for the E-2 category.


Applicant's investment is substantial _______________________________________________________• No set dollar figure constitutes a minimum amount of

investment to be considered "substantial" for E-2 visa purposes;

• The investment must be sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

• Investment must be proportionally substantial:• Proportionality Test:• The amount of qualifying funds invested, and the cost

of an established business; or• If a newly created business, the cost of establishing

such a business.



Substantial Investment Sliding Scale _______________________________________________________

The sliding scale that is sometimes used by the Consular Officers:

Total value of business or cost to start new business Minimum percentage of investment required

Less than $500,000 75 %

$500,000 to $3,000,000 50 %

More than $3,000, 000 30 %

Although, this scale is not cited in the Immigration and Naturalization Service and Department of State regulations, it may still be used as a benchmark in making an initial assessment as to whether an investment is substantial.

(Note: The scale is only a guideline. Investments must still be evaluated on a case-by-case basis for adequacy. Small-scale investments may still be acceptable, including ones smaller than $100,000, if the amount invested represents nearly all of the total value of the business or the start-up costs.)


Investment must be more than marginal _______________________________________________________The investment must not be solely for the purpose of earning a living for the investor and his or her family.

The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the investor and his or her family members. Determining if the investment is marginal:

• Is the business enterprise the type that of necessity, will require employees beyond the investor in order to operate?

• Will the business be conducted on a scale that will assure this employment?

• Can reliable projections of income be made that show that sufficient funds will be generated beyond a living wage for the investor, such that money will be available to pay salaries to U.S. workers?


Applicant is in a position to "develop & direct" the enterprise_____________________________________________________

In accordance with Section 101(a)(15)(E)(ii) of the Immigration and Nationality Act (INA), it must be shown that a national (or nationals) of the treaty country, through ownership, or by other means; develop and direct the activities of the enterprise.

The type of enterprise being sought will determine how this requirement is applied.


Employer Qualification _______________________________________________________

In order to qualify to bring an employee into the United States under INA 101(a)(15)(E), several criteria must be met:

a) The prospective employer must meet the nationality requirement. If the employer is an individual, the employee must be of the same treaty country. If the employer is a corporation or other business organization, at least 50 % of the ownership must have the same nationality as the treaty country;

b) The employer and the employee must have the same nationality; and

c) The employer, if not a resident abroad, must be maintaining “E” status in the United States.


If E-2 applicant is an employee: must work in managerial position or must possess essential skills applicable to the firm’s operations _______________________________________________________

Two classes of employees may be accorded treaty-investor status:

1. Treaty nationals serving in a managerial capacity,2. Treaty nationals who serve in technical capacities, requiring special

training and qualifications, and who are needed to:

• Establish the enterprise (start-up);• Train or supervise persons serving in technical positions, such

as manufacturing, maintenance, or repair technicians; and• Continuously monitor and develop product improvement and

quality control.

When employees are brought to the U.S. for start-up of the enterprise, it is expected that once start-up has been completed, U.S. workers will be trained to fill these positions.


Factors to determine if the employee is essential_______________________________________________________

• The employee’s degree or proven expertise in area of operations;• The uniqueness of the specific skills;• The function of the job to which the applicant is destined;• The salary such special expertise will command;• The employees skills need to be indispensable to the success of

enterprise;• The availability of U.S. workers.

Factors that are not material as to whether the employee is essential:• Knowledge of a foreign culture;• Knowledge of a foreign language; or• Previous employment with the company.


Applicant intends to depart the United States when the E-2 status terminates _______________________________________________________

• Applicant must have an intent to depart the U.S. upon termination of status.

• Applicant does not need to keep a separate residence in a foreign country.

• Applicant may sell his/her residence and move household effects to the U.S.


Spouses and Children of E-2 Investor _______________________________________________________

The spouse of an E-2 investor is entitled to derivative status in the same classification as the principal applicant.

The spouse of an E-2 investor can apply for work authorization after entering the U.S. with an E-2 visa.

The children under 21 can also accompany their parents to the U.S. on an E-2 visa.

The children can attend school in the U.S. in E-2 status.


E-2 Statistics_______________________________________________________

E-2 Treaty Investor Visas Issued FY 2008-2012

Worldwide E-2 Workload FY 2012

Source: http://www.travel.state.gov/content/visas/english/law-and-policy/statistics/non-immigrant-visas.html

2008 2009 2010 2011 2012

28,588 24,033 25,500 28,245 31,942

Issued Refused Total Workload Waived/Overcome

31,942 7,115 39,057 4,538


E-2 Class of Admission (I-94 Only) FY 2012: Total 288,217_______________________________________________________State # I-94 State # I-94 State # I-94 State # I-94 Other Unknown

Alabama 3,413 Hawaii 2,029 Minnesota 627 Ohio 7,192 127 31,028

Alaska 183 Idaho 190 Mississippi 325 Oklahoma 204

Arizona 3,092 Illinois 6,281 Missouri 471 Oregon 1,077

Arkansas 386 Indiana 2,988 Montana 332 Pennsylvania 2,777

California 50,949 Iowa 299 Nebraska 235 Texas 52,145

Colorado 1,323 Kansas 309 Nevada 1,254 Utah 264

Connecticut 1,869 Kentucky 2,943 New Hampshire

286 Vermont 561

Delaware 106 Louisiana 457 New Jersey 7,444 Virginia 2,572

District of Columbia

476 Maine 3,228 New Mexico 472 Washington 16,375

Florida 20,701 Maryland 1,120 New York 25,293 West Virginia 170

Georgia 4,862 Massachusetts 2,621 North Carolina

3,157 Wisconsin 536

Guam 1,684 Michigan 14,073 North Dakota 836 Wyoming 110



TOP Ten (10) E-2 Country Filers for FY2012_______________________________________________________

Country E-2 Applicants

Japan 10,130

Germany 3,847

South Korea 3,041

Mexico 2,938

Canada 2,221

Great Britain 1,979

France 1,741

Spain 1,042

Italy 924

Sweden 347



Advantages of E-2 Investor Visa _______________________________________________________

Can start up company or buy existing company;

Can operate business and live anywhere in the USA;

No immediate job creation requirement;

Immediate work authorization for yourself;

Length of visa is 5 years;

E-2 visa can be renewed indefinitely;

Spouse receives work authorization;

Children under 21 can attend school in the USA;

No Employer sponsorship required; and

Apply directly at a Department of State (DOS) embassy or consulate.


SPECIAL GUEST _______________________________________________________

Consular Officer JP LAI

U.S. Consulate General

Toronto

• http://toronto.usconsulate.gov/


Q & A _______________________________________________________

Q. Do I really have to invest the money before I apply for the visa?

Q. Can't you issue me the visa first?

Q. How do I start a business, if I don't have the visa?

Q. Where can I get information about good places to invest in the U.S.?Q. What licenses and permits do I need to open and run a business in the

U.S.?

Q. My spouse and/or children are citizens of a country other than my own. Can they still accompany me?

Q. Can anyone apply for an E-visa in Toronto?

Q. Do I have to come to Toronto to apply in person?

Q. Should I apply at the consulate or file a change of status application in

the U.S.? Source: http://toronto.usconsulate.gov/visas/treaty-trader-visas/treaty-trader-and-investor-visas-faqs.html


3290 West Big Beaver Road, Suite 510, Troy, MI 48084Phone: 248-643-4900 Fax: 248-643-4907

[email protected]@employmentimmigration.com

www.employmentimmigration.com www.investorvisas.net

THANK YOU!

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E 2 powerpoint presentation final - 3-1-14