Investment & Business

E-2 Treaty Investor Visa
L-1 Intracompany Transferee Visa

E-2 Treaty Investor Visa

The E-2 Treaty Investor Visa is a unique opportunity for individuals from certain countries to live and work in the United States through investment in a U.S. business. Unlike many other visa categories, the E-2 visa program does not have an annual cap on the number of visas issued, and it does not require a specific minimum investment amount. In this guide, we will explore the essential aspects of the E-2 Treaty Investor Visa, including the eligibility criteria, the validity period, and the application process.

1. Eligibility Criteria for the E-2 Treaty Investor Visa:

To qualify for an E-2 Treaty Investor Visa, applicants must meet specific eligibility criteria:

  • Citizenship of a Treaty Country

E-2 visas are available to citizens of countries that have a qualifying treaty of commerce and navigation with the United States. The applicant must be a citizen of one of these treaty countries. However, there is an exception for citizens of the United Kingdom, who are eligible for E-2 visas.

  • Ownership Percentage

At least 50% of the U.S. company in which the applicant plans to invest must be owned by citizens of the same treaty country. This means that the majority ownership of the enterprise should belong to individuals who share the applicant’s treaty country’s citizenship. The ownership structure can also include additional qualifying individuals.

  • Qualifying Status

To be eligible for an E-2 visa, the applicant, as well as the company’s owners or employers, must meet one of the following conditions:

– Be present in the United States on a current E-2 or another non-immigrant visa status (Green Card holders are not eligible).

– Be located outside the United States and demonstrate the ability to meet the criteria for E-2 qualification, even if they have not yet applied for an E-2 visa themselves.

  • Key Role in the Business

The applicant must play a crucial role in the business. This can take one of the following forms:

– Being a 50% owner of the company.

– Serving as a key employee, executive, supervisor, or holding a similar position that is essential to the business’s operations.

  • Substantial Investment

A fundamental requirement for the E-2 visa is making a substantial investment in a U.S. business. This investment can come in various forms, including capital, assets, or cash. Notably, there is no strict numerical measure for what constitutes a substantial investment, as it varies depending on the type of business. Several key factors are considered:

– The proportionality of the investment compared to the cost of starting or purchasing a similar business.

– The demonstration of the applicant’s commitment to the successful operation of the enterprise.

– The magnitude of the investment, which should support the likelihood of successfully developing and directing the business.

Investments below $100,000, regardless of the business’s size or purpose, may face increased scrutiny. Applicants should consider providing a detailed business plan, evidence of rapid growth over time, and comparative studies showing that similar businesses in the chosen U.S. location have thrived with similar investments.

  • Non-Marginal Profit Generation

The business in which the applicant invests must not merely produce marginal profits. It should make a significant economic contribution to the community, either immediately or within five years of starting operations. The profits should be more than just enough to support the living expenses of the owners.

  • Active Business

Investment should be directed toward an active business that produces goods or services. Investments in holding companies, stocks, bonds, and real property are not considered active. The key determinant is whether the business requires active supervisory or executive oversight on a day-to-day basis. If real property is involved, it may undergo additional scrutiny.

  • Intent to Leave the U.S.

E-2 visa holders must maintain the intent to leave the United States when their status expires. This requirement ensures that the E-2 visa remains a temporary, non-immigrant visa.

2. Validity Period of the E-2 Treaty Investor Visa

The E-2 Treaty Investor Visa offers a flexible and renewable status. The initial E-2 visa granted depends on the treaty country. Upon entry to the U.S., the E-2 visa holder is authorized to stay for up to the date indicated on their Form I-94.

E-2 visa holders can seek extensions, and there is no set limit on the number of extensions they can apply for.

Additionally, maintaining the intent to leave the U.S. upon visa or status expiration is vital to remain compliant with E-2 requirements.

3. The E-2 Treaty Investor Visa Application Process

If you are applying for the E-2 Treaty Investor Visa from outside the United States, you will need to follow these steps:

Step 1. Visa Application (DS-160): Complete the DS-160 form, the online non-immigrant visa application.

Step 2. Pay Application Fee: Pay the required application fee, which typically amounts to $205.

Step 3. Form DS-156E: Fill out Form DS-156E, which provides details about the investment and business.

Step 4. Gather Documents: Collect the necessary supporting documents, including:

   – Proof of nationality for qualifying business owners (passport copies).

   – Documents showing the current residence of each owner (their affidavits).

   – Proof of ownership, which can include stock certificates with notarized affidavits, partnership agreements, business registration certificates, business licenses, or other relevant documents.

   – Evidence of the applicant’s key role in the business, such as a detailed statement from the sponsoring business explaining specific duties and supervisory roles.

   – Proof of the business’s active status, including articles of incorporation/business charter, bank statements, credit agreements, leases or deeds for business premises, payroll reports, and tax returns.

   – Proof that the business generates more than marginal profits through financial records and tax returns.

   – Documentation demonstrating that the investment is substantial, irrevocable, and at risk, including canceled checks, wire transfer memos, contracts, and other relevant documents.

   – A business plan.   

Step 5. Attend Consular Interview: Schedule and attend an interview at the U.S. consulate or embassy in your home country. During the interview, provide evidence of ties to your home country.

Step 6. Visa Issuance Fee Payment and Entry to the U.S. After your visa is approved, pay the visa issuance fee and prepare for your entry into the United States.

If you are already in the United States and wish to change your status to an E-2 Treaty Investor Visa, follow these guidelines:

– Ineligibility for Certain Visa Categories: Be aware that changing status to E-2 from specific visa categories, such as Visa Waiver status, C, TWOV, D, K, and some J-1 categories, is not allowed.

– Demonstrate No Preconceived Intent: When applying for a change of status, provide evidence that there was no preconceived intent to change your status when you initially entered the U.S.

By adhering to the eligibility criteria and following the application process, individuals can successfully obtain and maintain their E-2 Treaty Investor Visas, allowing them to pursue their business ventures in the United States. Remember that the E-2 visa offers flexibility, unlimited extensions, and the opportunity to contribute significantly to the U.S. economy while enjoying life in the United States.

L-1 Intracompany Transferee Visa

The L-1 Intracompany Transferee Visa is a popular immigration option for employees of multinational companies who wish to work in the United States. This visa category allows qualified individuals to transfer from a company outside the U.S. to a related U.S. company. Unlike many other visa programs, the L-1 visa has no annual cap on the number of visas issued. In this guide, we will explore the essential aspects of the L-1 Intracompany Transferee Visa, including the eligibility criteria, validity period, and application process.

1. Eligibility Criteria

To qualify for an L-1 Intracompany Transferee Visa, applicants must meet specific eligibility criteria:

  • Employment Outside the U.S.

Applicants must have been employed by a qualifying entity outside the United States for at least one year within the past three years.

  • Employment Categories

The L-1 visa has two employment categories, each with distinct criteria:

a. Managers and Executives (L-1A Visa)

– Managers: Individuals who manage an entire organization, a department, subdivision, function, or component of the organization. They supervise and control the work of other supervisory, professional, or managerial employees. They have authority over personnel decisions such as hiring and firing. They make decisions concerning day-to-day operations.

– Executives: Individuals who direct the management of the organization or a major function or component. They set the goals or policies of the organization. They possess extensive discretionary decision-making authority. They receive only general supervision or direction from higher-level executives, a board of directors, or the organization’s stockholders.

b. Specialized Knowledge Workers (L-1B Visa)

– Specialized Knowledge Workers have advanced knowledge of the company’s products, services, research, equipment, techniques, management, or its application in international markets. They may also possess advanced knowledge of the company’s processes and procedures.

  • U.S. Company Relationship

The U.S. company where the applicant intends to work must have a qualifying relationship with the non-U.S. employer. The relationship can take various forms, including:

– Parent: A non-U.S. company that owns more than 50% of the U.S. company.

– Branch: Different operating locations of the same company.

– Subsidiaries: A U.S. company that owns at least 50% of a non-U.S. company.

– Affiliates: No direct ownership between the entities; both are controlled by a common third entity, which can be a company, group, or individual.

– Joint Venture Partners: There is no common ownership between the two companies, but they have jointly undertaken a common business operation or project.

International accounting firms have special rules, as they are often part of international accounting organizations.

The qualifying entities can take various legal forms, including corporations, limited corporations, partnerships, joint ventures, sole proprietorships, non-profit organizations, or religious organizations.

  • Ongoing Non-U.S. Company Operations

It is essential that the non-U.S. company remains in operation while the L-1 visa holder is in the United States, and the applicant should be prepared to show intent to return to work for the non-U.S. company after the L-1 assignment in the U.S. concludes.

2. Validity Period and Extensions

The L-1 Intracompany Transferee Visa has specific validity periods and extension options based on the visa category and circumstances:

The L-1 visa is typically issued for an initial period of one year for new office L-1 visas.

– Managers and executives (L-1A visa holders) can generally extend their visas for up to 2 years at a time. However, it’s essential to verify current regulations, as policies may change.

– Specialized knowledge workers (L-1B visa holders) can also extend their visas for up to 2 years at a time, subject to prevailing policies.

L-1A visa holders, including managers and executives, can stay in the United States for a maximum of 7 years, provided they meet the eligibility requirements.

– L-1B visa holders, who are specialized knowledge workers, can stay for a maximum of 5 years, subject to meeting eligibility criteria.

Any time spent in H visa status counts toward the maximum stay period of five or seven years for L-1 visa holders.

L-1 visa holders can continue working while an extension is pending, up to the authorized stay period, plus an additional 240 days.

Blanket L-1 Visa Extensions

For companies using the blanket L-1 visa, extensions work differently:

Blanket L-1 visas can be extended only once after the initial three years. After this extension, the blanket L-1 visa becomes valid indefinitely.

Once an individual reaches the maximum stay allowed on an L-1 visa (five or seven years), they must spend one year outside the U.S. before returning with another H or L visa.

If an L-1 visa holder must leave the U.S. after an L-1 extension has been approved, they must visit a U.S. consulate to obtain a new visa stamp to be able to return.

Spouses and dependent children of L-1 visa holders can obtain L-2 visas. L-2 visa holders are authorized to work upon arriving in the U.S..

L-1 visa holders can apply for permanent residency (green card) in the United States. Managers and executives often qualify for EB-1 visas, which do not require labor certification. Specialized knowledge workers may pursue EB-2 or EB-3 visas, which require labor certification.

L-1 visa status is considered « dual intent, » meaning that an L-1 visa holder can have the intent to live and work in the U.S. temporarily while also having the intent to eventually seek permanent residency.

4. The Application Process

Step 1 : Proof of Eligibility

To prove eligibility for an L-1 Intracompany Transferee Visa, applicants must provide detailed documentation:

– Detailed statements from both U.S. and non-U.S. companies explaining:

  – Dates of employment.

  – Qualifications.

  – Salary.

  – Specific duties.

  – The number and kind of employees supervised.

– Organizational charts, especially to demonstrate managerial duties.

– A description of the job that the applicant will perform in the U.S.

– A comparison of the applicant’s peers abroad and in the U.S. to showcase advanced expertise and the corresponding need at the U.S. employer.

Applicants must also provide proof that both the U.S. and non-U.S. companies are engaged in trade or the rendering of services. This can be substantiated by providing copies of various documents, including:

– Articles of incorporation.

– Business registration certificates.

– Tax returns for the past two years.

– Annual reports or financial statements for the past two years.

– Payroll records for the past two years.

– Letters of reference from chambers of commerce.

– Promotional literature describing the nature of the company.

– Letters from banks indicating average account balances.

– Copies of leases or deeds for business premises.

Step 2 : Change of Status

If applicants are already in the U.S. and wish to change their status to an L-1 visa, they should follow these steps:

– File Forms I-129 & Form I-129L to apply for a change of status.

– Be aware that changing status to an L-1 visa from specific visa categories, such as Visa Waiver status, C, TWOV, D, K, and some J-1 categories, is not allowed.

– Applicants should be cautious to demonstrate that they had no preconceived intent to change status when initially entering the U.S.

– Spouses and children can apply for a change of status using Form I-539 for spouses and Form I-539S for children.

Step 3 : the U.S. Consulate

Once the L-1 visa petition is approved, the applicant must complete the following steps at a U.S. consulate or embassy in their home country:

– Visa application (DS-160).

– Payment of the application fee ($205).

– Gathering of documents as required by the consulate.

– Attend a consular interview and provide evidence of ties to the home country.

– Pay the visa issuance fee and prepare for entry into the United States.

The L-1 Intracompany Transferee Visa offers employees of multinational companies a valuable opportunity to work in the United States, promote business growth, and contribute to the U.S. economy. Understanding the eligibility criteria, validity period, and application process is crucial for a successful L-1 visa application.