Visa Lawyer Blog

Articles Posted in E-2 Spouses

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We are happy to deliver some amazing news for H-4, E, and L dependent spouses! On November 12, 2021, following a settlement agreement known as Shergill v. Mayorkas, the United States Citizenship, and Immigration Services (USCIS) issued a new Policy Memorandum (Policy Alert PA-2021-25) outlining that the agency will automatically allow for employment authorization for dependent E, L, and certain H-4 spouses of principal visa holders, without requiring spouses to file I-765 application for employment authorization to be eligible to work in the United States.

The new Policy Memorandum also rescinds the agency’s previous 2002 Memorandum which did not allow dependent spouses in E, L and certain H-4 visa holders to automatically qualify for work authorization in the United States.

Following this new settlement, E, L, and certain H-4 spouses will be able to work just by having their valid visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to lawfully work in the United States.

While some doubt initially arose regarding whether E dependent spouses would qualify for automatic employment authorization, USCIS has now explicitly confirmed that it will indeed consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status.

The new November 12, 2021, Policy Memorandum outlines the following:

  • Certain H-4, E, or L dependent spouses to qualify for an automatic extension of their existing employment authorization and accompanying employment authorization document (EAD) if they properly filed an application to renew their H-4, E or L-based EAD before the document expires and they have an unexpired Form I-94 evidencing their status as an H-4, E, or L nonimmigrant;
  • The automatic extension of the EAD will continue until the earlier of: end date on Form I-94 evidencing valid status the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the prior EAD document; Form I-94, evidencing unexpired nonimmigrant status (H-4, E or L), Form I797C receipt for a timely – filed EAD renewal application stating “Class requested as “(a)(17),” “(a)(18) or ((c)(26)”, and the facially expired EAD issued under the same category);

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Welcome back to Visalawyerblog! In this blog post we share with you some recent news regarding a new class action lawsuit that has been filed by 49 plaintiffs against the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS), seeking relief from the extreme processing delays currently taking place for I-765 applications for employment authorization (EADs) filed by individuals seeking adjustment of status (AOS) in the United States, and for I-765 applications filed by E-2 dependent spouses with USCIS.

Currently, USCIS reports that I-765 work permit applications based on a pending I-485 adjustment of status application are taking between 20 to 21.5 months to process at the California Service Center; while it is taking 9 to 9.5 months to process work permit applications at the National Benefits Center; and 9.5 to 10.5 months to process such applications at the Nebraska Service Center.

The new legal challenge against the government has been mounted by the American Immigration Lawyers Association (AILA), Wolfsdorf Rosenthal LLP, Joseph and Hall PC, Kuck Baxter Immigration LLC, and Siskind Susser PC.

The lawsuit seeks to hold the government accountable once and for all for the exorbitant processing times taking place for work permit applications to be adjudicated, especially those at the California Service Center. Under the law, applicants for adjustment of status are afforded the option of applying for temporary employment authorization while their green card applications are pending with USCIS, through what is supposed to be an easy procedure that involves filing a simple I-765 application for employment authorization. In normal circumstances, such employment authorization applications took on average 7 to 9 months to be adjudicated. Since the onset of the pandemic however USCIS has not been able to adjudicate these applications within reasonable timeframes.

Processing times have gotten worse and worse to the point that applicants are receiving their green card interview appointments before even coming close to receiving an approved employment authorization document. This has resulted in applicants being unable to seek employment while waiting for their green card applications to process. This has caused great cause for concern for individuals who have a job offer lined up or who need to work to maintain their households. Further, the American economy is experiencing more and more labor shortages as they struggle to get individuals back to work. The situation at the USCIS level is making it even more difficult for American businesses to find qualified workers.

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We kick off the start of a brand-new week with some important information for immigrant and nonimmigrant visa applicants residing in regions currently affected by the four geographic Presidential Proclamations still in place, for non-citizens in the Schengen countries, the United Kingdom, China, Iran, Brazil, South Africa, and India.

The Presidential Proclamations, collectively known as the COVID-19 Geographic Proclamations are as follows:

  • Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil and South Africa)
  • Presidential Proclamation 9984 (China)
  • Presidential Proclamation 9992 (Iran)
  • Presidential Proclamation 10199 (India)

*The Schengen countries include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The COVID-19 Proclamations were issued early on during the pandemic to help contain the rapid spread of the Coronavirus in the United States, by limiting the entry to the United States, of non-citizen travelers who were physically present in any of the impacted regions during the 14-day period, prior to their planned entry or attempted entry to the United States.

To comply with these Proclamations, U.S. Embassies and Consulates worldwide have been unable to issue nonimmigrant and immigrant visas to those who have been physically present in any of the above mentioned 33 covered countries. But all of that has recently changed thanks to new National Interest Exception designations made by the Secretary of State for certain types of travelers.

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Welcome back to Visalawyerblog! It is the start of a brand-new week and we are excited to bring you more updates in the world of immigration.

We are happy to report that the Department of State has released important information for nonimmigrant visa applicants who may qualify for an interview waiver. That’s right. Certain nonimmigrant visa applicants will now be eligible to obtain a renewal of their visas without being required to attend a Consulate interview.

Who may take advantage of Non-Immigrant Visa Interview Waivers?

The Secretary of State, Antony Blinken, has consulted with the Department of Homeland Security, and temporarily expanded the ability of Consular officials to waive the in-person interview requirement, which is normally required of all individuals seeking nonimmigrant visas in the same visa classification – in other words renewal applicants.

Prior to the COVID-19 pandemic, interview waivers were only available to those applicants whose nonimmigrant visa was set to expire within 24 months.

The Secretary has now temporarily extended the Interview Waiver eligibility to those whose visas are set to expire within 48 months. This new policy will be in effect until December 31, 2021.

According to the Department of State, “This change will allow consular officers to continue processing certain nonimmigrant visa applications, while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.”

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On January 23, 2020, the United States Citizenship and Immigration Services (USCIS) formally announced by way of a notice published in the Federal Register that nationals of Iran and their dependents are no longer eligible to change or extend their stay in E-1 or E-2 nonimmigrant status due to the termination of the 1995 Treaty of Economic Relations (also known as the Treaty of Amity) between the United States and Iran.

Under current immigration law, “the existence of a qualifying treaty or authorizing legislation is . . . a threshold requirement for issuing an E visa.” Therefore, the termination of the Treaty of Amity between the United States and Iran no longer provides a basis for Iranian nationals to qualify for the E nonimmigrant visa classification.

When did the Treaty end?

On October 3, 2018, the U.S. Department of Homeland Security notified Iran of the Termination of the Treaty of Amity. On October 23, 2019, the Department of State provided DHS with formal notice of the termination of the treaty. Currently, there are no other qualifying treaties with Iran or any legislation for granting E-1 or E-2 status to Iranian nationals.

What does this mean?

Accordingly, a national of Iran is no longer eligible for an extension of stay in E-1 or E-2 status or a change of status to E-1 or E-2 on the basis of the Treaty of Amity.

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In this blog post we highlight the best features of E-2 Treaty Investor Visa program, for individuals seeking to live and work in the United States for a temporary period of time.

First let’s discuss what the E-2 visa is. The E-2 visa is a non-immigrant visa type, which means that it is a temporary visa option for individuals who do not wish to immigrate to the United States, but rather are interested in remaining in the United States for a limited period of time.

Secondly, the E-2 visa is a treaty investor visa. This means that in order to qualify for this visa type you must be a national of a country with which the United States maintains a treaty of commerce and navigation. This visa type allows a national of a treaty country to apply for admission to the United States under the E-2 visa category for the purpose of investing a substantial amount of capital in a United States business.

Currently, 89 countries maintain a treaty of commerce and navigation with the United States. Israel and New Zealand are the most recent countries to enter into a treaty commerce and navigation with the United States, allowing nationals of these countries to participate in the E-2 visa program. For a complete list of the countries with which the U.S. maintains a treaty of commerce and navigation, please click here.

The most frequently asked question when it comes to the E-2 visa is, how much money must I invest in order to qualify for this visa type?

The amount of money that must be invested depends on the nature of the business’ operations. USCIS defines the amount of capital to be invested as “a substantial amount of capital” interpreted as:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

Thirdly, to qualify for the E-2 visa the investment must be in a bona fide business enterprise that is real, active, and operating and is producing either services or goods for profit. Passive investments are not allowed.

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New Zealand Now Eligible to Apply for E-1 and E-2 Investor Visas

Beginning June 10, 2019, New Zealand nationals can apply for the E visa categories thanks to the President’s enactment of the Knowledgeable Innovators and Worthy Investors (KIWI) Act. Applicants who are already in the United States on a valid non-immigrant visa may now apply for a change of status to an E visa.

The E visa does not provide a direct path to permanent residency, but it is a great option for individuals who wish to live and work in the United States with their families for a temporary period of time. There is no set limit on the maximum amount of time an individual may remain on the E visa, but applicants must intend to depart at the end of their period of authorized stay in the United States.

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We are pleased to announce very exciting news for our Israeli clients. The U.S. Embassy in Israel has announced the implementation of the U.S. E-2 Investor Visa Program for Israeli nationals, beginning May 1st.

Our Israeli clients have been waiting for this opportunity for years and we are very happy to tell you that you will now have the opportunity to apply for the E-2 visa as an Israeli national, beginning May 1st.

The E-2 investor visa is a non-immigrant temporary visa that allows foreign nationals from participating countries to invest in the creation of a new business, or in an existing business. The E-2 visa applicant can apply for the E-2 visa to develop, direct, or provide their specialized skills to the company they are investing in.

To qualify for a Treaty Investor (E-2) visa:  

  • The investment must be substantial and sufficient to ensure the successful operation of the enterprise;
  • The business must be a real operating enterprise;
  • The investor must be traveling to the U.S. to develop and direct the enterprise;
  • If the applicant is not the investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

Requirements

  • The investor, either a person, partnership or corporate entity, must be a citizen of a treaty trade/investment country, and be involved in international trade.
  • If the investor is a company, at least 50% of the owners in the qualifying company must maintain the nationality of a treaty trader country if they are not lawful permanent residents of the U.S. If these owners are in the U.S., they must be in E-1 or E-2 status.
  • The investment funds and the applicant must come from the same Treaty Country.
  • The business in which investment is being made must provide job opportunities or make a significant economic impact tin the United States. The business should not be established solely for the purpose of earning a living for the applicant and his or her family.

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The E-2 treaty investor visa allows foreign nationals to make an investment in an existing or new business venture in the United States.

Advantages

There are no numerical limitations on the number of E-2 visas that can be issued, and there is no set minimum level of investment required, however the level of investment that should be made in the business venture should be sufficient to justify the presence of the foreign national in the United States. Although the E-2 visa is granted for an initial two-year period, the investor may qualify to extend their stay in two-year increments, with no outer limit on the total period of the foreign national’s stay.

Disadvantages

Not all foreign nationals are eligible to apply for the E-2 treaty investor visa. To qualify, you must be a foreign national from a treaty country that participates in a treaty of friendship, commerce, navigation or similar agreement with the United States. See below for qualifying countries:

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

Another disadvantage is that the E-2 visa is a temporary non-immigrant visa type. This means that the E-2 visa does not create a pathway to permanent residency. In addition, making an investment in a small business venture is risky. Most small businesses fail. Investors seeking to establish a new business in the United States must be prepared to face challenges, obstacles, and potential losses. If the investment will be made by a company, at least 50% of owners in the qualifying country must maintain the nationality of a treaty trader country if they are not lawful permanent residents.

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Citizens of New Zealand now qualify for the E-2 Treaty Trader Investor Visa thanks to a United States–New Zealand partnership recently signed into law. The KIWI Act, or Knowledgeable Innovators and Worthy Investors Act, signed into law on August 1st, adds New Zealand to the list of eligible countries participating in the E-2 Visa program. This is great news for entrepreneurs from New Zealand seeking to do business in the United States.

Overview of the E-2 Treaty Trader Investor Visa

The E-2 Treaty Investor Visa is a non-immigrant visa type that is only available to foreign nationals of a foreign country with a qualifying treaty of friendship, commerce, navigation, or a similar agreement with the United States. A treaty trader visa is issued for an initial period of 2 years that can be renewed in 2-year increments, with no outer limit on the total period of stay. Dependents of the principal E-2 applicant can apply for derivative E visas to accompany the entrepreneur in the United States.

The E-2 visa allows entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities include the creation of a new business in the United States, or an investment in an existing business in the United States. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

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