Visa Lawyer Blog

Articles Posted in E2 Investor Visas

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In this post, we bring you the top three mistakes to avoid when applying for a B-1/B-2 non-immigrant visa at a United States consulate or embassy abroad. All too often clients contact our office feeling distraught after receiving a B-1/B-2 visa denial from a consular official. The good news is that a B visa denial can be easily avoided by understanding the common mistakes that people make when pursuing the B nonimmigrant visa.

First, it is important to understand who is eligible to apply for a B non-immigrant visa.

B-1 versus B-2

The B-1 temporary business visitor visa is reserved for individuals who seek to travel to the United States for a temporary period to participate in a business activity of a commercial or professional nature. Examples of individuals who qualify for this type of visa include: individuals consulting with business associates, individuals negotiating contracts, settling an estate, participating in short term training, entrepreneurs who wish to travel to the United States to research the market for a potential business venture, individuals traveling for a scientific, educational, professional, or business convention, or conference, etc.

Individuals who typically apply for this type of visa are entrepreneurs and investors who wish to apply for an E-2 visa in the future and who need to visit the United States to research the market or other business activities relating to researching the viability of the business venture.

B-1 temporary business visitors may be eligible to remain in the United States anywhere from 1-6 months—with 6 months being the maximum. Ultimately, it will be up to the consular/embassy official to determine the length of your period of stay. Typically, applicants are granted an initial period of stay of 6 months. B-1 visa holders may extend their stay for an additional 6 months if it is necessary for them to remain in the United States for an extended period to complete their temporary business activity.

Similarly, the B-2 temporary visitor visa is reserved for individuals who wish to enter the United States temporarily for tourism, pleasure, or visitation. Examples of individuals who qualify for this type of visa include tourists, individuals who wish to visit friends, or relatives, individuals seeking medical treatment, amateur artists, musicians, or athletes who wish to participate in events or contests that do not provide compensation, and individuals who wish to enroll in a short recreational course of study that does not count for credit toward a degree. The length of stay granted to a B-2 temporary visitor is the same as that of a B-1 temporary business visitor.

Who may not apply for a B visa?

Individuals who wish to immigrate to the United States and remain in the United States permanently, or individuals who wish to study, seek employment, etc. may not apply for a B non-immigrant visa.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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Background

It was only several years ago that Antoine, a French native, set his eyes on achieving his lifelong dream of starting an aviation company in the state of California, providing flight services to foreign pilots in transit to or vacationing in the state of California. With over six years of experience in the European aviation industry, as a private and commercial pilot, Antoine certainly had amassed the skills and experience necessary to launch his company. On a visit to California, Antoine identified a niche in the market and decided that he would cater to the needs of foreign pilots flying through the Los Angeles County area. With the help of the Law Offices of Jacob Sapochnick, Antoine was able to turn his lifelong dreams into reality. Today, Antoine’s company Heading West is off the ground and on its way to becoming Southern California’s leading flight service company. So how did we do it?

About the Visa

Here at the Law Offices of Jacob Sapochnick, it is no secret that our clients are our biggest inspiration. After having spoken to Antoine about his new business venture, his qualifications, and other needs, we agreed that the best option for Antoine and his family, was to apply for an E-2 Treaty Investor Visa. Although the E-2 Treaty Investor Visa does not create a path to permanent residency, it is a great visa for foreign entrepreneurs who wish to enter the United States and carry out investment and trade activities. To qualify for the treaty investor visa, the investor must be from a qualifying treaty trader country, and must invest a substantial amount of capital to develop and direct the business operations of a new commercial enterprise, or invest in an existing U.S. business. Other requirements for the E-2 visa are as follows:

  • 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.
  • The investment must come from the investor. The money must be “at risk”. Thus, a loan that is secured by the assets of the business itself will not qualify i.e. if loans have been taken out, they must be secured or guaranteed by the investor personally, and not by the assets of the corporation.
  • The investment must be substantial, a standard which depends on the nature of the enterprise. Generally, investment funds or assets must be committed and irrevocable. The funds or assets must be deemed sufficient to ensure the success of operations.
  • The investment must be real and active and not passive; this means that a bank account, undeveloped land or stocks, or a not-for-profit organization will not be sufficient to be considered.
  • The enterprise must be a real, operating commercial enterprise or active entrepreneurial undertaking productive of some service or commodity.

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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On December 12, 2016, the Department of State published the Annual Numerical Limits for both family and employment-based visa preference categories for Fiscal Year 2017.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems on the Visa Bulletin and become current based on the immigrant’s priority date. The Visa Bulletin estimates immigrant visa availability for prospective immigrants. Applicants who fall under family preference or employment categories must wait in line until an immigrant visa becomes available to them, for applicants to proceed with their immigrant visa application. Once the immigrant’s priority date becomes current per the Visa Bulletin, the applicant can proceed with their immigrant visa application. A priority date is generally the date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS. The Visa Bulletin exists due to numerical immigrant visa limitations for family-sponsored and employment-based preference categories established by the Immigration and Nationality Act (INA). Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence.

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Today August 26, 2016 we bring entrepreneurs around the world exciting news regarding a new measure USCIS plans to implement designed to benefit entrepreneurs of startup companies. USCIS has announced a new proposal that will make it easier for certain foreign entrepreneurs to receive temporary permission to enter the United States, also known as ‘parole,’ for the purpose of starting or scaling their start-up business enterprise in the United States.

The rule has been referred to as the ‘International Entrepreneur Rule’ which will give the Department of Homeland Security (DHS) the authority to expand discretionary statutory parole status to eligible entrepreneurs of startup companies, who can demonstrate that the startup enterprise they are interested in creating, has a substantial potential to yield rapid growth, and job creation in the United States.

Under this new rule, DHS would be able to grant parole on a case-by-case basis to eligible entrepreneurs of startup companies who can demonstrate the following:

  • At least a 15 percent ownership interest in the startup enterprise in question;
  • That they take on an active and central role in the startup enterprise’s operations;
  • That the startup enterprise has been formed in the United States within the past three years; and
  • That the startup enterprise has proven to yield a substantial and demonstrated potential for rapid business growth and job creation as evidenced by:
  1. Having received a significant investment of capital of at least $345,000 from certain qualified U.S. investors that have a proven track record of success i.e. showing established records of successful investments;
  2. Having received significant awards or grants of at least $100,000 from federal, state, or local government entities; or
  3. By partially satisfying one or both of the above criteria, in addition to presenting other reliable and compelling evidence to show the startup entity’s substantial potential for rapid growth and job creation in the United States;

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If you are a foreign entrepreneur, you have probably discovered that the United States immigration system is very limited in that there are very few visa options available to entrepreneurs that do not tie down the entrepreneur to a foreign employer, as is the case for the L and H visas. To make matters worse, if your ultimate goal is to obtain a green card to live and work in the United States permanently, you must work for an American employer willing to sponsor your adjustment of status. Although there are few exceptions, the main avenue through which entrepreneurs can gain permanent residence is either through family-sponsorship or employment-based sponsorship.

To obtain permanent residence through an employer you must either a) be a professional employed by a U.S. employer willing to sponsor your green card b) demonstrate extraordinary ability in your industry (science, arts, education, business, or athletics, c) work in a management or executive position abroad requiring international transfer to the United States or d) qualify as an EB-5 investor. In either of these cases, the U.S. employer must submit the I-140 Immigrant Petition for Alien Worker for you, before you can apply for permanent residence. If your ultimate goal is not to obtain a green card, then you have more options available to you.

We decided to write about this topic because we have found that many entrepreneurs that visit our office are not well-informed on other visa types that put them on a more direct path to permanent residence. Often times the topic of conversation leads to the E-2 Treaty trader visa, by far the most discussed visa type among entrepreneurs. Few entrepreneurs however have heard about the L-1 visa classification, that may in some ways be more beneficial to foreign entrepreneurs wishing to live and work in the United States permanently. Below we discuss both visa types and the advantages and disadvantages of both visas.

The E-2 visa, the most talked about visa:

Without a doubt, the most popular visa option entrepreneurs ask about is the E-2 visa. Many entrepreneurs however do not know that the E-2 visa is not available to everyone, and it is not a path to permanent residence. The E-2 visa is a non-immigrant treaty investor visa that is only available to foreign nationals from specific treaty countries. The E-2 visa allows foreign nationals to carry out investment and trade activities, after making a substantial investment in a U.S. business that the foreign national will control and direct. E-2 visa investors can either purchase an existing U.S. business or start a new business.

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A recent working paper published by Harvard economist, William R. Kerr, and Wellesley economist, Sari Pekkala Kerr, is making waves on the subject of immigrant entrepreneurship. The study asks: just how important are foreign-born entrepreneurs to our economy? Are their contributions truly significant?

The study’s abstract reads as follows:

We examine immigrant entrepreneurship and the survival and growth of immigrant-founded businesses over time relative to native-founded companies. Our work quantifies immigrant contributions to new firm creation in a wide variety of fields and using multiple definitions. While significant research effort has gone into understanding the economic impact of immigration into the United States, comprehensive data for quantifying immigrant entrepreneurship are difficult to assemble. We combine several restricted-access U.S. Census Bureau data sets to create a unique longitudinal data platform that covers 1992-2008 and many states. We describe differences in the types of businesses initially formed by immigrants and their medium-term growth patterns. We also consider the relationship of these outcomes to the immigrants’ age at arrival to the United States.

The study is important because it forces members of Congress to conduct a cost-benefit analysis, in order to determine whether or not it is beneficial for the United States to create more opportunities for highly-skilled entrepreneurs and professionals. Regrettably, the immigration debate has largely centered around illegal immigration to the United States, ignoring calls to create more flexibility for highly-skilled immigrants and immigrant entrepreneurs. As it stands today, immigrant entrepreneurs can only obtain a green card via sponsorship from a United States employer. The majority of entrepreneurs are forced to remain in the United States on a temporary ‘dual intent’ nonimmigrant visa, until a U.S. employer agrees to sponsor their green card. Visa options are very limited for highly-skilled immigrants. Even for the most brilliant of entrepreneurs, this process requires time and patience. Our current immigration laws are doing us a disservice since they are keeping out some of the most talented entrepreneurs in the world. Immigrant entrepreneurs are increasingly important because the number of businesses and American jobs they create is on the rise.

Here are some of the study’s findings:

  • As of 2008, at least one in four entrepreneurs among start-up companies are foreign-born. Similarly, at least one in four employees among new firms are foreign-born
  • 37% of new firms had at least one immigrant entrepreneur working for the company
  • At least 1 in 3 start-up firms were founded by an immigrant entrepreneur, with an increasing rate from 1995-2008
  • The share of immigrants among all employees working for start-up companies is on the rise
  • Immigrant employees in low-tech positions comprise about 22.2% of start-up companies, while 21.2% of immigrants work in high-tech positions in start-up companies
  • Among new start-ups backed by venture capitalists, 60% had at least one immigrant entrepreneur
  • Immigrant employees working for a start-up company backed by venture capitalists have higher mean average quarterly earnings

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We would like to wish you and your families a very Happy Independence Day on behalf of our office! Have a safe and relaxing weekend!

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Last week our very own managing attorney Jacob Sapochnick, Esq., and associate attorney Yingfei Zhou, Esq. had the pleasure of attending the 2016 American Immigration Lawyers Association (AILA) Conference on Immigration Law in Las Vegas, Nevada. Together, they bring you the most up to date information on the new N-400 online filing system and new N-400 form, the new customer service tool EMMA—a computer-generated virtual assistant, information regarding delays in adjudication of H-1B extension/transfer applications and Employment Authorization applications, filing tips for H-1B extensions, updates on EB-1C Multinational Executive/Manager green cards, Employment Authorization eligibility for spouses of E-2 and L-1 visa holders, and updates on Administrative Appeals Office (AAO) Decisions.

New Naturalization Form and N-400 Online Filing System

  1. USCIS recently published a new N-400 form on 04/13/2016. Applicants may use the previous 09/13/2013 version until 08/09/2016. Any naturalization applications received on or after 08/10/2016 containing the old form with revision date 09/13/2013 will be rejected and returned to the sender.
  1. USCIS is currently testing a new N-400 online filing system. This system will be available to applicants without legal representation and will eventually become available to applicants represented by an immigration attorney.

New Customer Service Tools EMMA

  1. USCIS is introducing a new customer service tool called EMMA – a computer-generated virtual assistant who can answer your questions and even take you to the right spot on the USCIS website. EMMA is USCIS’ version of ‘Siri’ and is designed to help you navigate the USCIS website. EMMA is available in the Spanish language. So far, EMMA has managed to answer 80% of questions asked.

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