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The ABCs of Immigration - E-2 Treaty Investor Visas
by Greg Siskind and Amy Ballentine

E-2 Treaty Investor visas are available to persons entering the US “solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital.” E-2 non-immigrant visas are available to foreign-owned businesses if the home country of the business owners has a treaty with the US that allows American businesses to operate in that home country. At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the US and the home country have a ratified bilateral investment treaty. Employees of the enterprise who are working in management, executive or “essential” positions are eligible for the visa if the ownership breakdown meets the above test, and the employee is a national of the treaty country. Some of the most important requirements for an E-2 visa include the following:

· The investment must be active, not passive. This means that the money invested must be used to produce a real commodity or service. For example, an investment in land would not be considered active, but if the investment was accompanied by submission of development plans to authorities and contracts for building, it would be active. Both the INS and State Department allow the use of an escrow account to protect the applicant in case the visa is denied, but other evidence showing the investment will be active must be presented. The investor must manage the business and exercise a controlling interest in the business.

· The investment must be substantial. While “substantial” is not defined by any particular dollar amount, both the INS and the Department of State use one of two tests to see if this requirement is met. They require either that the amount invested be proportional to the total value of the business, or that it be an amount typically considered necessary to establish a viable business in the field. The INS and State Department sometimes use a sliding scale that they are allowed to reference in determining whether an investment is “substantial.”

o If the value of the business or the cost to start it is less than $500,000, a minimum 75% investment is required.

o If the value of the business or the cost to start it is between $500,000 and $ 3 million, a minimum 50% investment is required.

o If the value of the business or the cost to start it is over $3 million, a minimum 30% investment is required.

· The investment cannot be marginal. The State Department will look at whether the investment will generate more funds than just enough for the owner to make a living and whether the investment will create jobs.

The E-2 visa applicant must have nonimmigrant intent – that is, they must intend to depart the US after their authorized period of stay is over. However, unlike other most other nonimmigrant visa categories, this requirement can be met if the alien simply provides the consulate with a statement indicating non-immigrant intent.

Applications for E-2 visas are made directly to the consulate and not through the INS unless the applicant is in the US in another visa status and seeks to change to an E-2 visa. Each consulate has its own version of an E visa questionnaire form and most require extensive documentation to support application. The length of time for which the visa will be issued is determined by agreements between the US and the treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-2 status. Spouses and children of E-2s are entitled to visas as well. E-2 family members are not subject to deportation proceedings because they accept employment, but they will be considered out of status and ineligible to change or adjust their visa status in the US. There are no restrictions on family members pursuing studies while in E-2 status, however.

The following countries have ratified investment treaties with the US and their nationals can apply for E-2 status:

Argentina
Australia
Austria
Armenia
Bangladesh
Belgium
Bosnia
Bulgaria
Canada
Cameroon
China (Taiwan)
Colombia
Colombia
The Congo
Costa Rica
Croatia
Czech Republic
Egypt
Ethiopia
Estonia
Finland
France
Germany
Grenada
Georgia
Honduras
Iran
Ireland
Italy
Japan
Jamaica
Kazakhstan
Korea (South)
Kyrgyzstan
Liberia
Luxembourg
Macedonia
Mexico
Moldova
Morocco
Netherlands
Norway
Oman
Pakistan
Panama
Philippines
Poland
Romania
Senegal
Slovakia
Slovenia
Spain
Sri Lanka
Suriname
Sweden
Switzerland
Thailand
Togo
Trinidad & Tobago
Tunisia
Turkey
Ukraine
United Kingdom
Zaire

Bilateral investment treaties have been signed with the following countries, but have not been ratified by Congress:

Azerbaijan
Belarus
Croatia
Haiti
Honduras
Jordan
Lithuania
Mozambique
Nicaragua
Russia
Uzbekistan


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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