Weitere ähnliche Inhalte Ähnlich wie E 2 powerpoint presentation final - 3-1-14 (20) E 2 powerpoint presentation final - 3-1-143. About Us
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• Founded in 1997 - Global staff of
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• Premier-AV Rated Immigration law
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• Leaders in providing Global
Immigration Services for over 100
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4. Introduction to E-2 Investor Visa Category
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An E-2 treaty investor visa is a nonimmigrant visa that enables a
national of a treaty country (a country with which the United States
maintains a treaty of commerce and navigation) to be admitted to the
United States based on an investment he or she will be controlling
while inside the United States.
© 2014, Fakhoury Law Group, PC
5. E-2 Investor Visa Requirement
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In order to qualify for E-2 Investor Visa:
1)
2)
3)
4)
5)
6)
7)
8)
Requisite treaty must exist;
Individual and/or business possess the nationality of the treaty country;
Applicant has invested or is actively in the process of investing;
Enterprise is a real and operating commercial enterprise;
Applicant's investment is substantial;
Investment is more than a marginal one solely for earning a living;
Applicant is in a position to "develop and direct" the enterprise;
Applicant, if an employee, is either in a managerial position or possesses
essential skills to the firm's operations in the U.S.; and
9) Applicant intends to depart the United States when the E-2 status
terminates.
Source: 9 FAM 41.51 N1.2
© 2014, Fakhoury Law Group, PC
6. Requisite treaty must exists between USA and …
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Africa
Cameroon
Congo
Europe
(Brazzaville)
Albania
Congo
Armenia
Austria
(Kinshasa)
Azerbaijan
Egypt
Belgium
Ethiopia&
Bosnia
Herzegovina
Liberia
Bulgaria
Morocco
Croatia
CzechSenegal
Republic
Togo
Denmark
Tunisia
Estonia
Asia
Bahrain
Bangladesh
China
(Taiwan)
Iran
Japan
Jordan
Kazakhstan
Kyrgyzstan
Mongolia
Oman
Pakistan
Philippines
Singapore
South
Korea
Sri Lanka
Thailand
Turkey
Europe
Kosovo
Albania
Latvia
Armenia
Lithuania
Austria
Luxembourg
Azerbaijan
Macedonia
Belgium
Moldova
Bosnia &
Herzegovina Montenegro
Netherlands
Bulgaria
Norway
Croatia
Poland
CzechRomania
Republic
Serbia
Denmark
SlovakEstonia
Republic
Finland
Slovenia
France
Spain
Georgia
Sweden
Germany
Switzerland
Ireland
Ukraine
Italy
U.K
Yugoslavia
North America
Canada
Costa Rica
Grenada
Honduras
Jamaica
Mexico
Panama
Trinidad &
Tobago
Oceania
Australia
Finland
South America
France
Argentina
Georgia
Bolivia
Germany
Ireland
Chile
Italy
Colombia
Kosovo
Ecuador
Latvia
Lithuania
Paraguay
Luxembourg
Suriname
Macedonia
Moldova
Source: http://travel.state.gov/content/visas/english/fees/treaty.html#
Montenegro
Netherlands
E-2 Treaty Countries
© 2014, Fakhoury Law Group, PC
7. Individual and/or Business must Possess the Nationality of the
Treaty Country
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Individuals:
• The nationality of the individual is determined by the authorities of the
country of which the Foreign National claims nationality;
• National of the treaty country MUST own at least 50% of the business;
• Foreign Nationals who are also U.S. permanent residents cannot be
counted toward determining at least 50% ownership.
Business:
• The nationality of a business is determined by the nationality of the
individual owners of that business;
• The country of incorporation is irrelevant to the nationality
requirement for E visa purposes;
• Both individual and company must satisfy the 50% rule.
Source: 9 FAM 41.51 N3.1
© 2014, Fakhoury Law Group, PC
8. Dual Nationality of the Treaty Investor
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• A business can only have one qualifying nationality for E-2 visa
status. Unless, the enterprise is owned and controlled equally
(50/50) by nationals of two treaty countries.
• For dual national owner(s), a choice must be made as to which
nationality should be used.
• Once the nationality is chosen, all owners and E visa
employees must possess the nationality of the single E visa
qualifying country (even if they possess the nationality of
another E visa country).
• When a company is equally owned and controlled by nationals
of two different treaty countries, employees of either nationality
may obtain E visas to work for that company.
Source: 9 FAM 41.51 N3.3
© 2014, Fakhoury Law Group, PC
9. Applicant Must Invest or be in the Process of Investing
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Possession and Control of the Funds
• Applicant must demonstrate possession and control of the funds,
including the funds already invested in the enterprise (Ex. Savings,
gift, inheritance, etc.)
• Inheritance of a business does not constitute an investment;
• Source of funds can be either from outside of the USA or inside.
Investment Connotes Risk
• Foreign National investment must be at risk
• If the business goes bad and the funds are not subject to partial or
total loss, then it is not an “investment;”
• Funds must be irrevocably committed;
• Mere intent to invest, or uncommitted funds in the bank account,
or even prospective investment arrangements, entailing no
present commitment, will not suffice.
Source: 9 FAM 41.51 N8.1-1
© 2014, Fakhoury Law Group, PC
10. Qualifying Investment vs. Non-Qualifying Investment
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Qualifying investments
Non-qualifying investments
Loans secured by the investor’s own assets, Mortgage debt or other loans secured
such as a mortgage on his or her real property.
by the enterprise assets.
Unsecured loans granted on the basis of the Loans for which the lending institution
investors signature.
has recourse against a guarantor in the
event of nonpayment by the investor.
Value of purchased equipment and property.
Cash not held in reserve by the
corporation, such as cash held in
personal bank accounts.
Cash reserves placed in a business account at
the disposal of the business for purchase of
equipment, property, or start-up inventory.
(Note: cash reserves alone, without evidence
that the business enterprise has been undertaken,
will not satisfy the requirement of an “active”
investment.)
Rental payments, inventory purchases,
and other recurring costs beyond startup of the enterprise. Such costs are
assumed to be paid out of income
generated by the enterprise, and are
not a part of the investment
attributable to the investor.
© 2014, Fakhoury Law Group, PC
11. Business Loans and Indebtedness
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Q. Does mortgage debt or commercial loans secured by the assets of
the enterprise count towards the investment?
A. No, because there is no requisite element of risk. For example, if
the business in which the Foreign National is investing is used as
collateral, funds from the resulting loan or mortgage are not at
risk, even if some personal assets are also used as collateral.
Q. What does count toward the investment?
A. Only indebtedness collateralized by the Foreign National’s own
personal assets, such as a second mortgage on a home, or
unsecured loans, such as a loan on the Foreign National personal
signature may be included, since the Foreign National risks the
funds in the event of a business failure.
© 2014, Fakhoury Law Group, PC
12. Enterprise must be a real operating commercial enterprise
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• The enterprise must be real a and active commercial
enterprise;
• The enterprise must produce some service or
commodity;
• The enterprise cannot be a paper organization or an
idle speculative investment;
• The enterprise must be for profit, thus, eliminating
non-profit organizations from consideration for the
E-2 category.
© 2014, Fakhoury Law Group, PC
13. Applicant's investment is substantial
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• No set dollar figure constitutes a minimum amount of
investment to be considered "substantial" for E-2 visa
purposes;
• The investment must be sufficient to ensure the treaty
investor's financial commitment to the successful operation of
the enterprise; and
• Investment must be proportionally substantial:
• Proportionality Test:
• The amount of qualifying funds invested, and the cost
of an established business; or
• If a newly created business, the cost of establishing
such a business.
Source: 9 FAM 41.51 N10.2
© 2014, Fakhoury Law Group, PC
14. Substantial Investment Sliding Scale
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The sliding scale that is sometimes used by the Consular Officers:
Total value of business or cost to start new business
Minimum percentage of
investment required
Less than $500,000
75 %
$500,000 to $3,000,000
50 %
More than $3,000, 000
30 %
Although, this scale is not cited in the Immigration and Naturalization Service
and Department of State regulations, it may still be used as a benchmark in
making an initial assessment as to whether an investment is substantial.
(Note: The scale is only a guideline. Investments must still be evaluated on a
case-by-case basis for adequacy. Small-scale investments may still be
acceptable, including ones smaller than $100,000, if the amount invested
represents nearly all of the total value of the business or the start-up costs.)
© 2014, Fakhoury Law Group, PC
15. Investment must be more than marginal
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The investment must not be solely for the purpose of earning a living for the
investor and his or her family.
The marginality of an investment enterprise is measured by its capacity to
employ U.S. workers other than the investor and his or her family members.
Determining if the investment is marginal:
• Is the business enterprise the type that of necessity, will require
employees beyond the investor in order to operate?
• Will the business be conducted on a scale that will assure this
employment?
• Can reliable projections of income be made that show that sufficient
funds will be generated beyond a living wage for the investor, such that
money will be available to pay salaries to U.S. workers?
© 2014, Fakhoury Law Group, PC
16. Applicant is in a position to "develop & direct" the enterprise
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In accordance with Section 101(a)(15)(E)(ii) of the
Immigration and Nationality Act (INA), it must be
shown that a national (or nationals) of the treaty country,
through ownership, or by other means; develop and
direct the activities of the enterprise.
The type of enterprise being sought will determine how
this requirement is applied.
© 2014, Fakhoury Law Group, PC
17. Employer Qualification
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In order to qualify to bring an employee into the United States under
INA 101(a)(15)(E), several criteria must be met:
a) The prospective employer must meet the nationality requirement. If
the employer is an individual, the employee must be of the same
treaty country. If the employer is a corporation or other business
organization, at least 50 % of the ownership must have the same
nationality as the treaty country;
b) The employer and the employee must have the same nationality;
and
c) The employer, if not a resident abroad, must be maintaining “E”
status in the United States.
© 2014, Fakhoury Law Group, PC
18. If E-2 applicant is an employee: must work in managerial position
or must possess essential skills applicable to the firm’s operations
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Two classes of employees may be accorded treaty-investor status:
1. Treaty nationals serving in a managerial capacity,
2. Treaty nationals who serve in technical capacities, requiring special
training and qualifications, and who are needed to:
• Establish the enterprise (start-up);
• Train or supervise persons serving in technical positions, such
as manufacturing, maintenance, or repair technicians; and
• Continuously monitor and develop product improvement and
quality control.
When employees are brought to the U.S. for start-up of the enterprise, it is
expected that once start-up has been completed, U.S. workers will be trained
to fill these positions.
© 2014, Fakhoury Law Group, PC
19. Factors to determine if the employee is essential
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•
•
•
•
•
The employee’s degree or proven expertise in area of operations;
The uniqueness of the specific skills;
The function of the job to which the applicant is destined;
The salary such special expertise will command;
The employees skills need to be indispensable to the success of
enterprise;
• The availability of U.S. workers.
Factors that are not material as to whether the employee is essential:
• Knowledge of a foreign culture;
• Knowledge of a foreign language; or
• Previous employment with the company.
© 2014, Fakhoury Law Group, PC
20. Applicant intends to depart the United States when the E-2 status
terminates
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• Applicant must have an intent to depart the U.S. upon termination
of status.
• Applicant does not need to keep a separate residence in a foreign
country.
• Applicant may sell his/her residence and move household effects to
the U.S.
© 2014, Fakhoury Law Group, PC
21. Spouses and Children of E-2 Investor
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The spouse of an E-2 investor is entitled to derivative status in the
same classification as the principal applicant.
The spouse of an E-2 investor can apply for work authorization
after entering the U.S. with an E-2 visa.
The children under 21 can also accompany their parents to the U.S.
on an E-2 visa.
The children can attend school in the U.S. in E-2 status.
© 2014, Fakhoury Law Group, PC
22. E-2 Statistics
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E-2 Treaty Investor Visas Issued FY 2008-2012
2008
2009
2010
2011
2012
28,588
24,033
25,500
28,245
31,942
Worldwide E-2 Workload FY 2012
Issued
Refused
Total Workload
Waived/Overcome
31,942
7,115
39,057
4,538
Source: http://www.travel.state.gov/content/visas/english/law-and-policy/statistics/non-immigrant-visas.html
© 2014, Fakhoury Law Group, PC
23. E-2 Class of Admission (I-94 Only) FY 2012: Total 288,217
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State
# I-94
State
# I-94
State
# I-94
State
# I-94
Other
Unknown
Alabama
3,413
Hawaii
2,029
Minnesota
627
Ohio
7,192
127
31,028
Alaska
183
Idaho
190
Mississippi
325
Oklahoma
204
Arizona
3,092
Illinois
6,281
Missouri
471
Oregon
1,077
Arkansas
386
Indiana
2,988
Montana
332
Pennsylvania
2,777
California
50,949
Iowa
299
Nebraska
235
Texas
52,145
Colorado
1,323
Kansas
309
Nevada
1,254
Utah
264
Connecticut
1,869
Kentucky
2,943
New
Hampshire
286
Vermont
561
Delaware
106
Louisiana
457
New Jersey
7,444
Virginia
2,572
District of
Columbia
476
Maine
3,228
New Mexico
472
Washington
16,375
Florida
20,701
Maryland
1,120
New York
25,293
West Virginia
170
Georgia
4,862
Massachusetts
2,621
North
Carolina
3,157
Wisconsin
536
Guam
1,684
Michigan
14,073
North Dakota
836
Wyoming
110
Source: http://www.travel.state.gov/content/visas/english/law-and-policy/statistics/non-immigrant-visas.html
© 2014, Fakhoury Law Group, PC
24. TOP Ten (10) E-2 Country Filers for FY2012
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Country
E-2 Applicants
Japan
10,130
Germany
3,847
South Korea
3,041
Mexico
2,938
Canada
2,221
Great Britain
1,979
France
1,741
Spain
1,042
Italy
924
Sweden
347
Source: http://www.travel.state.gov/content/visas/english/law-and-policy/statistics/non-immigrant-visas.html
© 2014, Fakhoury Law Group, PC
25. Advantages of E-2 Investor Visa
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Can start up company or buy existing company;
Can operate business and live anywhere in the USA;
No immediate job creation requirement;
Immediate work authorization for yourself;
Length of visa is 5 years;
E-2 visa can be renewed indefinitely;
Spouse receives work authorization;
Children under 21 can attend school in the USA;
No Employer sponsorship required; and
Apply directly at a Department of State (DOS) embassy or consulate.
© 2014, Fakhoury Law Group, PC
27. Q&A
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Q. Do I really have to invest the money before I apply for the visa?
Q. Can't you issue me the visa first?
Q. How do I start a business, if I don't have the visa?
Q. Where can I get information about good places to invest in the U.S.?
Q. What licenses and permits do I need to open and run a business in the
U.S.?
Q. My spouse and/or children are citizens of a country other than my own.
Can they still accompany me?
Q. Can anyone apply for an E-visa in Toronto?
Q. Do I have to come to Toronto to apply in person?
Q. Should I apply at the consulate or file a change of status application in the
U.S.?
Source: http://toronto.usconsulate.gov/visas/treaty-trader-visas/treaty-trader-and-investor-visas-faqs.html
© 2014, Fakhoury Law Group, PC
28. THANK YOU!
3290 West Big Beaver Road, Suite 510, Troy, MI 48084
Phone: 248-643-4900 Fax: 248-643-4907
Rami@employmentimmigration.com
Syeda@employmentimmigration.com
www.employmentimmigration.com
www.investorvisas.net
© 2014, Fakhoury Law Group, PC
Hinweis der Redaktion FaM FAM Ex: Ten shareholders each own 10% of the stock in a trading company. Five of them are nationals of Pakistan, the others are nationals of other countries. The company qualifies because 50% of the shareholders are nationals of the treaty country. Three French nationals are equal owners of a company making investments in the United States. Two of the French nationals are U.S. permanent residents. In this situation, the investing company is not majority-owned by qualified nationals of a treaty country, and the company does not have French nationality. Once the nationality is chosen, all owner and E visa employees must possess the nationality of the single E visa qualifying country (even if they possess the nationality of another E visa country). Possession and Control of the FundsInheritance of a business does not constitute an investment. Source of funds can be either from outside of the USA or inside. Investment Connotes RiskIf the business goes bad and the funds are not subject to partial or total loss, then it is not an “investment”Funds must be irrevocably committed. Mere intent to invest, or uncommitted funds in the bank account, or even prospective investment arrangements entailing no present commitment, will not suffice Department of State- Office of Immigration Statistics Consulate General Of the United States – Toronto - CanadaQ: Do I really have to invest the money before I apply for the visa? Can't you issue me the visa first?A: E-2 visa regulations require that the funds be "irrevocably committed" to the investment before the visa may be issued. Therefore, you must demonstrate that your investment meets this criterion when you apply for an E-visa; this is usually accomplished by showing that your funds are already at risk. Funds can be considered to be irrevocably committed, however, if they are held in an escrow account contingent only on the issuance of an E-visa.Q: How do I start a business if I don't have the visa?A: You may enter the United States in B-1 status in order to set up (not run) your business. You may not be paid in the U.S. while in B-1 status. If your enterprise requires someone to manage or run daily operations, you may hire individuals who are already legally allowed to work in the U.S. prior to receiving your E-visa. Once you have made the initial commitment of your funds, you should apply immediately for the E-visa.Q: Where can I get information about good places to invest in the U.S.?A: We do not have regional or state business and economic information. The U.S. government's trade function promotes exports, not inward investments, which is left to state and local governments. Please contact state offices of economic development and local chambers of commerce for economic forecasts and similar information. Additionally, several U.S. state governments maintain economic development offices in Toronto and Montreal, which may be able to assist potential investors.Q: What licenses and permits do I need to open and run a business in the U.S.?A: Licensing and permit requirements in the U.S. fall mainly under state and local law, and vary with the type of business you wish to operate. For specific information, please contact the appropriate government offices in the locality where you plan to start your business. Q: My spouse and/or children are citizens of a country other than my own. Can they still accompany me?A: The spouse and children (defined as unmarried and under 21 years of age) do not need to have the same citizenship as the principal applicant. However, dependents of E-visa holders are required to have visas in order to accompany the principal applicant to the United States.Q: Can anyone apply for an E-visa in Toronto?A: Only Canadian citizens and landed immigrants in Canada from a qualifying treaty country may apply for an E-visa in Toronto provided they are residents of Ontario, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Quebec and Saskatchewan.Q: Do I have to come to Toronto to apply in person?A: Yes. Each E-visa applicant, assuming they are applying from within the Toronto E-visa District, including dependents, must appear in person before a consular officer. In all cases, regardless of age, each applicant must be physically present in Canada at the time of application.Q: Should I apply at the consulate or change of status in the USA? A change of status with DHS does not automatically grant E-visa status. If you have been granted a change of status and leave the U.S., in most cases, you must qualify for an E-visa in order to return to the U.S. in that status. To obtain an E-visa, you may apply in the normal manner with us by following the instructions on our website. A change of status will not speed up adjudication or otherwise expedite your E-visa application.