FOR most professional immigrants that seek long term immigration status in the US, the key to success is finding an employer that would Petition them for an H-1b visa. The problem recently though is the reduction in the visa numbers for this classification that makes this visa unavailable most of the year after the cap has been reached. However, for those immigrants that have either a business in their home country, or have the capital or can raise the capital to establish a business in the US, there is another option for obtaining long term status in the US. This is either through the E-1 “treaty traders” or the E-2 “treaty investors.” Both classifications required that 1) the alien seeking E status is a national of a country with an appropriate treaty; 2) the US business to employ the alien is owned at least 50 percent by nationals of the same country as the E alien; 3) the trade or investment by the treaty nationals is “substantial”; and 4) the alien seeking E status either is an actual investor in the US business, has an executive or supervisory position in the US business, or possesses skills essential to the US business.
The major distinction between the two is that under the E-1, the US business must conduct “substantial trade” with and for which over 50 present of the substantial trade conducted with the treaty country. On the other hand, the E-2 requires “substantial investment” in the US business.
The E classification offers several advantages over other employment based non-immigrant classifications such as the H-1b and the L-1. First, no prior preapproved petition is required from the CIS. The immigrant may apply directly with the US Consulate. Second, there is no time limit an alien may stay in the US under an E classification. Third, there is no required affiliation with a foreign company as long as the US business is owned by at least 50% by nationals of the alien’s treaty country. Fourth, there is no requirement that the alien worked with a foreign affiliate. Fifth, the Alien’s dependent Spouse may legally work in the United States. The major disadvantage of the E is that either substantial investment or substantial trade with the treaty country is required. Also, this is not an option is the alien’s country does not have a treaty with the United States.
Alien investors can come to the US on a B-1 to evaluate business and investment opportunities. For more conservative investors, a safer option for maximizing success from both an immigration angle and a business angle is to purchase an existing business. Purchasing an existing and profitable business is more likely to satisfy the “substantial investment” requirement. Preparing an E case requires presenting legal and financial documents which reflects the ownership structure of the business as well as its financial condition. In the case of a new business, a well put together business plan should be prepared. It may be necessary to employ the services of other experts such as a CPA in addition to the immigration attorney. Due to the complexity of the E classification, aliens should seek the assistance of an experienced immigration attorney.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
