Visa Lawyer Blog

Articles Posted in Start-Up Immigration

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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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Today, November 30, 2018, the United States Department of Homeland Security announced a notice of proposed rulemaking (NPRM) that seeks to impose a registration requirement for H-1B petitioners seeking to file an H-1B petition on behalf of beneficiaries under the regular cap and advanced degree exemption.  An unpublished version of the proposed rule has been made available in the federal register.

Under the proposed rule H-1B Petitioners would be required to electronically register with USCIS during the designated registration period, in order to file a H-1B cap-subject petition on behalf of a foreign worker. In addition, DHS is proposing to change the order in which H-1B cap-subject registrations would be selected to meet the annual H-1B regular cap and advanced degree exemption. This change would increase the odds of selection for H-1B beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution.

Under the proposed rule, all petitioners seeking to file an H-1B cap-subject petition on behalf of a foreign worker would be required to submit to a mandatory registration process. Only those whose registrations are selected, would be eligible to file an H-1B cap-subject petition during the associated filing period.

The mandatory Internet-based registration process for petitioners seeking to file H-1B petitions for beneficiaries to be counted under the regular cap or advanced degree exemption, would begin before April 1st, in advance of the period during which H-1B petitions can be filed for a new fiscal year. An H-1B cap-subject petition would not be considered properly filed unless the petition is based on a valid registration selection for that fiscal year.

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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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During March of this year, the United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing services for all fiscal year 2019 cap-subject petitions, including petitions requesting an exemption from the general cap. USCIS announced that the suspension would last until September 10, 2018, in order to reduce H-1B processing times for long-pending petitions.

Temporary Suspension to Continue through February 19th

Recently, USCIS announced that the agency will be extending the temporary suspension until February 19, 2019.

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Today, May 25, 2018, the Department of Homeland Security announced that it will be publishing a proposed rule in the Federal Register on May 29th to end the International Entrepreneur Rule, a program that gives foreign entrepreneurs the opportunity to apply for parole to come to the United States for the purpose of developing or starting a business venture in the United States.

As you may be aware, during July of last year, DHS took its first steps to dismantle the program by delaying the implementation of the rule until March 14, 2018. During that time, DHS began to draft a proposal to rescind the rule. In December of 2017 however, a federal court ordered USCIS to begin accepting international entrepreneur parole applications, vacating the delay.

In an act of defiance, DHS is now seeking to eliminate the international entrepreneur rule altogether because the department believes that the rule sweeps to broadly and doesn’t provide sufficient protections for U.S. workers and investors. According to the agency, the international entrepreneur rule “is not an appropriate vehicle for attracting and retaining international entrepreneurs.” This is once again an effort by the Trump administration to undermine Obama era policies such as Deferred Action, to better align with the President’s America-first policies on immigration.

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Great News! Today, USCIS announced that the computer-generated selection process has been completed to select the H-1B petitions necessary to fulfill both the general cap and master’s cap for this H-1B season. The randomized lottery was completed yesterday April 11, 2018.

This H-1B season, USCIS received 190,098 H-1B petitions for Fiscal Year 2019 during the filing period that began on April 2nd. During Fiscal Year 2018, USCIS received 199,000 H-1B petitions during the filing period and completed the randomized lottery on the same day (April 11th).

USCIS will now begin the process of rejecting and returning all petitions that were not selected during the randomized lottery. As in previous years, USCIS completed the selection process for the master’s cap first, and all unselected master’s cap petitions were then placed in the random selection process for the general cap, giving master’s cap applicants a greater chance of being selected. In previous years, our office began to receive rejection notices for applicants that were not selected from mid to late June.

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A new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) makes clear that different H-1B petitioners may not file multiple H-1B petitions for a single beneficiary. This applies in a situation where different employers seek to file an H-1B petition for the same person.

According to the memorandum, in Matter of S-Inc, the Administrative Appeals Office (AAO) made clear in the decision that “related entities” are prohibited from making multiple H-1B filings for the same beneficiary. The memorandum clarifies that the term “related entities” “includes petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary.”

In light of this new memorandum, we caution petitioners against filing multiple H-1B petitions for the same beneficiary, even if the different petitioners are not related, where the cap-subject petition is being filed for the same beneficiary for substantially the same job.

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On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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