THE WONDERFUL WORLD OF “E – Visa”
QUESTION AND ANSWERS
What Is the E – Visa? The E – Visa is a non-immigrant visa, which enables the beneficiary to live and work in the US, based on an investment in a US business. This is not an immigrant visa, i.e. you don’t get a green card, but you can remain in E-Status for ever, so long as your business exists.
What is the E – Visa based on? There are four basic elements:
A. there must be a substantial legal investment or international transactions,
B. made directly by a corporation or a person
C. whose nation has signed a qualifying treaty of commerce with the US
D. And the person or corporation has the nationality of the treaty country.
What countries have treaties? There is an extensive list. Also there are several countries which have bilateral treaties which enable the petitioning company to seek employees of other nationalities. Ask your lawyer.
What is a substantial investment? In general substantial is over $250,000 but that depends on the business. There is a case for smaller investments if your business does not require it. For example: a stock broker. It may also be based on substantial commercial transactions. For example a company which exports computers to Colombia in substantial numbers could qualify as a treaty trader.
What determines the nationality of the corporation? The major shareholders must all be treaty nationals. A small percentage can be non-treaty nationals but the others must have the veto vote. Nationality is determined by your passport. A Lawful Permanent Resident cannot qualify as a treaty national.
Who needs to make the investment? The investment must be traced directly by the major shareholders, who must be treaty nationals. There has to be evidence of the source of the funds and also a direct investment in the company. This means the deposit should be made by the investor directly into the corporate account. Also, the investor has to have the same nationality as the company, so if the company is French, the investor has to be French.
Can I get an E without investing? Sure. A lot of people come as employees of a company, which qualifies for E-status. The shareholder does not need to be in E-visa status, but must be of the treaty nationality. There are two kinds of employees, supervisors/ managers and essential employees. Essential employees are people with specific skills. Often this is useful to bring employees who may have few educational credentials but have special knowledge of a craft.
Can I invest in a building? The problem with real estate is that the investment is not considered an active investment. The investment has to be made in a business that is active, moving funds, and hiring people. Buying an apartment to live in may be a huge investment but it doesn’t qualify as an active one.
What do you mean by tracing the source of funds? This means that USCIS is looking out for bad money. The money invested has to have a legitimate source and this has to be documented. For example: a gift, a sale of property, or savings. Sometimes the investor will need to trace the movement of the funds through different accounts to prove ownership. This is one of the most burdensome aspects of this visa.
The Highlights of this Visa
This visa is very useful if you need to employ specialized employees. Restaurants are common users of E-visas. The only requirement is that the employees have the same nationality as the company. The visa can be obtained quickly by sending it directly to the consular post.
The Department of State has the authority to adjudicate these visas, so even if you are approved by USCIS, a consular officer can re-evaluate the case and deny it. The visa requires a lot of documentation. The investor cannot apply for a labor certification with the company.
This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. Persons interested in obtaining more information should consult with their legal counsel to obtain explanations of all issues addressed herein.