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 The Immigration and Nationality Act ("INA") gives special status to citizens of countries which have entered into treaties with the United States. Required Nationality To qualify for either a treaty trader or investor status, the applicant must possess the nationality of the treaty country. The authorities of the foreign state of which the alien is a national determine the nationality of an individual treaty trader or treaty investor. The nationality of a business is determined by the nationality of the individual owners of that business. A business that is at least fifty percent owned by nationals of the relevant treaty country will be eligible for E status. Therefore, where two aliens equally own a company, both of which possess different nationality, the company will possess both nationalities. Applicants who hold dual nationality (other than United States citizenship) may qualify for E status but they must hold themselves out as nationals of the treaty country in question. Consequently, such an applicant must be documented and be admitted into the United States as a national of the treaty country from which the treaty benefits accrue. However, nationals of a treaty country who also hold United States citizenship or United States lawful permanent residence status are not considered nationals of the treaty country for the purposes of E eligibility. The country of incorporation is irrelevant to the nationality requirement for E visa purposes. However, in cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the consular officer may presume that the nationality of the corporation is that of the location of the exchange. However, where the stock of a corporation is exchanged in more than one country, the presumption will not apply. In such cases, the applicant will have to establish nationality through other means. An E visa applicant must intend to depart from the United States upon termination of his status. However, an applicant does not have to establish an intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant does not intend to abandon. The applicant's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific evidence to the contrary. An application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for a permanent labor certification or a filed or approved immigrant visa preference petition. Generally, the E-2 is available to nationals of the treaty country who are engaging in investment in the United States. The investor must show that she has invested or is actively in the process of investing a substantial amount of capital in a real and operating commercial enterprise, other than a marginal one solely to earn a living for the investor and her dependents. He or she must also be in a position to "develop and direct" the enterprise. Investment Must Be at Risk The concept of investment connotes the placing of funds or other capital assets at risk, in the commercial sense, in the hope of generating a return. If the funds are not subject to partial or total loss if business fortunes reverse, then it is not an investment. Therefore, the funds must be committed and personally at risk in order to qualify and the business must be an active and substantial investment. Indebtedness secured by the assets of the business is not considered a qualifying investment. This is true even where personal assets in addition to the assets of the business secure the indebtedness. However, unsecured loans or loans secured solely by the alien's own personal assets are considered qualifying investments. Investment Must be Irrevocably Committed Investment capital that is "in the process of being invested" must be irrevocably committed to the enterprise. However, it is possible to use various legal mechanisms, such as holding funds in escrow, to establish the necessary commitment of funds. For the alien to be "in the process of investing", the alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. A mere intention to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not suffice. However, a reasonable amount of cash, held in a business bank account or similar fund to be used for routine business operations, may be counted as part of the investment funds. Other Assets as Part of the Investment Payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business. However, more than one month of payments may be counted if they are made in advance. The amount spent for the purchase of equipment and for inventory already in the possession of the applicant may be counted as part of the qualifying investment. The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise. Real and Commercial Enterprise The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. A shell company, passive investment, or uncommitted funds do not qualify as they do not require the intent to direct or develop a commercial enterprise. However, an active real estate development would be a qualifying enterprise. Investment Must Be Substantial The term "substantial" means "such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government." The DOS position continues to be that there is no set minimum dollar amount that will be considered "substantial" for the purposes of E-2 eligibility. Investment Must Not Be Marginal The alien must not be investing in a marginal enterprise solely for the purpose of earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Ability to Develop and Direct the Enterprise A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business. The ability to develop and direct can be established by owning at least 50% of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means. Factors considered include ownership, control of stock by proxy, management position and authority, etc. Dependent Spouse and Minor Children The dependent spouse and minor child of a treaty trader or investor are entitled to the same classification as the principal alien; the nationality of the spouse or child is immaterial. Dependents may remain in the United States for the duration of the principal alien's stay. Until recently, they could attend school but could not seek employment. However, on January 16, 2002, President Bush signed H.R. 2277 (PL 107-124) into law. This law now permits spouses of treaty traders and investors to obtain employment authorization. This eligibility is effective as of the date of enactment. In a memorandum to field offices dated February 22, 2002, the INS explained that the spouse must obtain an employment authorization ("EAD") by filing Form I-765 with the required fee and evidence of his or her relationship to the principal alien before being permitted to work. Conclusion The E-2 Visa is a flexible option that allows non-immigrant treaty investors to enter the United States. It offers benefits which are not available in many other non-immigrant categories. It is an excellent option for investors. |
