Foreigners that have either a business in their home country or have the capital or can raise the capital to establish a business in the U.S., there is an option for obtaining long term status in the U.S. that confers a lot of privileges to the applicant. 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 U.S. business to employ the alien is owned at least 50% 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 U.S. business, has an executive or supervisory position in the U.S. business, or possesses skills essential to the U.S. business.
The major distinction between the two is that under the E-1, the U.S. business must conduct “substantial trade” with and for which over 50% of the substantial trade conducted with the treaty country. On the other hand, the E-2 requires “substantial investment” in the U.S. 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 U.S. Consulate. Second, there is no time limit an alien may stay in the U.S. under an E classification. Third, there is no required affiliation with a foreign company if the U.S. 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 U.S. 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 the presenting of 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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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, APC. This article is not a solicitation.
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Attorney Kenneth Ursua Reyes 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 is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APC is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]. Web: Kenreyeslaw.com.
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