E-1 and E-2

While most of the investment and employment immigration options are not specific to any one country, the E visa category is an exception. The E-1 and E-2 visas are the products of trade agreements and treaties between the United States and other countries.[2] They provide a unique way to live, invest and work in the United States that is not available to nationals of non-treaty countries.

E visas are nonimmigrant visas, meaning that they don’t lead directly to permanent resident status. However, by virtue of their unlimited renewability, they can help lay the groundwork for a successful immigrant visa application in the future. Since the treaties and trade agreements that the U.S. has made with individual countries are unique to each country, a national of one country may have only one or the other visa option available.

Fortunately, the United States has longstanding investment and trade agreements in place with Italy, France, the United Kingdom and Spain that encourage investors and entrepreneurs to start businesses in the U.S. In fact, investment and trade treaties that the U.S. has signed with Spain date back to 1903. In 1949, Italy and the U.S. made trade treaties designed to foster cooperation and investment in both countries to help Italy recover from World War II and bring Italian design and ingenuity to America—and vice versa. With one of our closest allies among these four countries, Great Britain, we have the oldest trade agreement, which was enacted in 1815.

The goal of fostering trade, investment and cooperation among treaty countries remains the stalwart rational for the E Visa category. An E visa can be based on either trade (E-1) or investment (E-2) in a business in the United States. Nationals of Italy, Spain, France and the U.K. have both the E-1 and E-2 visa options available to them. [3]

As noted, not every country has access to both E options and some countries have no treaty in place with the U.S. government at all. The fact that both categories are available to nationals of Italy, Spain, France and the U.K. makes investment and trade easier to accomplish and permanent residency within closer reach.

The E-2 is a more commonly used visa category than the E-1 and one of the fastest ways to enter the U.S. and start a business. Although it will not lead directly to a green card, it allows the investor to stay in the U.S. for the life of the E-2 business, because it is renewable indefinitely. In addition, spouses can work and minor (under 21) children can attend school. Finally, under this visa category, the business investor is also an employee and manager.

Unlike the EB-5 visa category, discussed below, there is no set amount of money that must be invested. The investment amount will vary by what is standard for the type of business and industry in the specific location. For example, investing $75,000 – $200,000 in a restaurant franchise may be sufficient to qualify for an E-2 visa. As the business investment grows, the possibility of applying for permanent residency becomes within reach through the EB-5 visa process.  For a detailed discussion comparing the E-2 and EB-5 visas, as well as using the E-2 as a springboard to transition to an EB-5, see, http://ecouncilinc.com/immigration-options-foreign-investors-side-side-comparison-e-2-eb-5/.

EB-5

The EB-5 Visa category offers two investment options through which a foreign national can obtain permanent residency and, eventually, citizenship in the US. One is the Regional Center Investment option and the other is the Direct Investment option. The main differences between the two options are the degree of involvement in the business and the effect of the investment on jobs for U.S. workers.

As of the date of posting, both options require a minimum investment of $1,000,000, unless the investment property is located in a Targeted Employment Area (TEA), in which case the minimum investment drops to $500,000 (see http://ecouncilinc.com/eb-5-minimum-investment-amounts/ for further discussion). A Targeted Employment Area is defined as either an urban area with an unemployment rate of 150% of the national average or higher, or a rural area.[4] Only the location of the investment, that is, whether the subject investment is within a TEA or not, determines the minimum investment threshold.[5]

EB-5 Regional Center Investment

• Requires a minimum investment of $1,000,000/$500,000 depending on location, into a fund that invests in, or loans funds to, qualifying projects
• Allows only a passive investment strategy because investment is managed by another company
• Creates ten new jobs for US workers directly or indirectly

EB-5 Direct Investment

• Requires a minimum investment of $1,000,000/$500,000 depending on location;
• Allows direct involvement in managing the investment
• Creates ten jobs for US workers directly or through subsidiary companies

L-1

The L-1 visa category allows an employee to apply for a nonimmigrant transferee visa if the E.U. company is affiliated with a company in the U.S. and the employee is being transferred to the U.S. location. However, the employee must be a manager, executive or an employee with specialized knowledge who has worked already for the E.U. company for one of the last three years and the job in the U.S. will be in a managerial, executive or specialized knowledge position.

This is an extremely viable path to obtaining an employment visafor E.U. nationals who work for E.U.-based companies with affiliated branches or divisions in the U.S. Hundreds of companies from Italy, France the UK and Spain, have branch offices in the United States and regularly transfer managers, executives and specialized knowledge employees under this visa category.

Managers and executives who enter the U.S. on an L-1 visa are, in most cases, eligible to apply for permanent residency under the EB-1-3 category, discussed below.

EB-1  

There are three paths to permanent resident status under the EB-1 visa category: Persons of extraordinary ability in the arts, sciences, education, business or athletics; outstanding professors and researchers; and, multinational executives and managers.

Someone who has “extraordinary ability” in business, the arts, science or education will not need to rely on any employment or investment to obtain a green card. An individual at the very top of his or her field is allowed to self-petition for a green card. The USCIS requirements to prove “extraordinary ability” are quite particular and stringent. While the law does provide for a variety of ways to prove eligibility for an EB-1-1 visa, the options are nevertheless strict.[6]

Nationals from Italy, Spain, the U.K. and France who qualify for this visa category, the EB-1-1, can file their own petitions to sponsor themselves. Anyone with such extraordinary qualifications should explore whether his or her credentials meet the criteria for this visa. While very few people meet the eligibility criteria for this visa category, those who do are rewarded with a green card for their nationally or internationally recognized professional accomplishments. Outstanding professors and researchers must meet similar high evidentiary standards and be seeking entry into the U.S. to continue in the same academic field with a university or conduct research at a university or with a private employer. They are eligible under the second option, EB-1-2.

Multinational executives and managers who previously entered in L-1 status to work for a U.S. affiliated company are generally eligible to apply for a green card under the EB-1-3 category. There are separate, specific evidentiary requirements for managers and for executives. However, both must be functioning at a high level within the organization with a large degree of discretion over management decisions and staff. Working with immigration counsel will help make the L-1 to EB-1 application process go smoothly.

Given the long history of friendship, trade and investment between the United States and France, Italy, Spain and the U.K., nationals of these countries have founded successful and growing businesses for generations. These entrepreneurs, investors and foreign nationals with extraordinary ability are always welcome in the United States.

To inquire about our wide range of immigrant and non-immigrant visa concierge services, please contact us by email at info@ecouncilinc.com, or toll-free at 1-866-724-0085.

e-Council Inc.’s website, newsletter and other forms of communication contain general information about legal matters. The information is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from an attorney or other professional legal services provider. For specific questions about any legal matter please consult with an attorney or other professional services provider.

[1] https://www.selectusa.gov/welcome. “With an annual GDP of $18 trillion and population of over 325 million, the United States is the world’s most attractive consumer market, offering unmatched diversity, a thriving culture of innovation, and the most productive workforce.”

[2] https://travel.state.gov/content/visas/en/fees/treaty.html

[3] The E-1 is based on friendship, commerce and navigation to carry on substantial international trade between the U.S. and the national of the treaty country.

The E-2 is based on a Bilateral Investment Treaty to develop and direct the business operations of a bona fide current investment or one in which the investor is actively seeking to invest substantial capital.

[4] https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa-classification

[5] It is a common misunderstanding that investing in a Regional Center project versus making a Direct Investment determines the amount of the investment. This article discusses that the location of the investment is the only determinant of the minimum investment amount. http://ecouncilinc.com/eb-5-minimum-investment-amounts/#_ftnref1

[6] https://www.uscis.gov/green-card/green-card-through-job/green-card-through-self-petition

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