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Comparison Of E-2 And L-1 Visas

by Greg Siskind

Visa Type

E-2

L-1

 

Basis of Visa

Treaty Investor

Intracompany Transfer

 

Requirements

         The investor, either a real or corporate person, must be a national of a treaty country and all applicants for the E-2 visa must be the same nationality as the investor.

         The investor has invested or is in the process of investing in the US company.

         The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with assets of the investment enterprise are not allowed.

         The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.

         The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.

         The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States .

         The visa applicant, if the principal investor in the company, must be in a position to "develop and direct" the enterprise.

         If the visa applicant is not the principal investor in the company (i.e. an employee of the company), he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify; and

         Applicant intends to depart the United States when the E2 status terminates.

 

E-2 Treaty Countries:

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia-Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo, Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Yugoslavia.

 

         The applicant must have been continuously employed abroad for one year of the last three for a parent, affiliate, branch or subsidiary of a US employer. Time spent in the US will not count towards the one year requirement.

         The foreign company and the US company must have a "qualifying relationship." Both the US and the foreign company must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.

         If the US company has less than one-year of operation, additional information must be submitted about the plans for the new office, such as proof that office space has been obtained, that the applicant has had the appropriate experience with the foreign company and that the foreign company will remain in existence during the full period of the applicant's transfer to the US.  Extension of the visa will require the US company to demonstrate that it has proceeded with the plans outlined in the initial petition.

         The applicant must be transferring to the US as a manager, executive or specialized knowledge employee

o        An "executive" is one who directs the management of the company or a major part or function of the organization, and has a supervisory role in the organization (such as President, Vice President, Controller).

o        A "manager" directs the organization, a department, or a function of the organization.

o        A "specialized knowledge employee" has a special knowledge of the company's products and their applications in world markets or an advanced or proprietary knowledge of the company's processes or procedures.

         The applicant must intend to depart the US when his or her stay is over. But the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend an L visa.

Application Process

  1. Submit application to US Embassy abroad to register company as a treaty company.
  2. Primary applicant attends visa interview at US Embassy for E-2 visa.  Dependants may apply simultaneously or following the primary applicantís approval.

 

**If an individual is in the US in a valid status, they may submit a petition to change to E-2 status to USCIS.  However, upon the individualís first departure from the US , steps 1 and 2 above must be completed before re-entry to the US .

 

  1. Submit petition to USCIS.
  2. Upon approval, applicant attends interview at US Embassy abroad for L-1 visa application.  Dependants may apply simultaneously or following the primary applicantís approval.
  3. Some companies may qualify for Blanket L-1 status, which eliminates the USCIS petition following initial approval.  L-1 visa applicants proceed directly to the visa application interview.

Processing Times

Processing time for application to register company varies among Embassies (typically 1-6 months).  Visa interview availability also varies (typically 2-4 weeks).

Processing times constantly change, but are usually 2-3 months. May submit application to USCIS for premium processing (15 days) for an additional fee. Visa interview availability also varies (typically 2-4 weeks).

 

Dependants

Spouses and minor children (under 21) of E-2 visa holders also receive E-2 visas.  Spouses with E-2 visas may apply for work authorization upon arrival in the US .

Spouses and minor children (under 21) of L-1 visa holders receive L-2 visas.  Spouses with L-2 visas may apply for work authorization upon arrival in the US .

 

Length of Visa

New company registration and primary applicantís visa usually approved for 2 years initially.  Subsequent re-registration and visa applications (depending on nationality) typically approved for 5 years.

 

New office L-1s approved for one year.  Renewal L-1s approved in 3 year increments.

Maximum stays

None, provided the individual and US company continue to meet all E-2 requirements.

7 years if admitted as a manager/executive; 5 years if admitted as a specialized knowledge employee.

 

Fees

$131 for primary applicant and registration; Visa application fee of $131 for all additional applicants.  Reciprocity fees (visa issuance fees) vary by nationality. Applications submitted to USCIS (for change of status to E-2) have additional fees.

$320 USCIS filing fee, $500 anti-fraud fee.  Premium processing fee of $1000 is optional.  Visa application fee is $131 per applicant.  Reciprocity fees (visa issuance fees) vary by nationality.


About The Author

Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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