AS you may be aware, a foreign national who desires to enter the US must obtain either an immigrant or non-immigrant visa. An immigrant visa allows one to stay in the US on a permanent basis. On the other hand, a foreign national can stay in the US on a temporary basis (either for pleasure, work, business or study reasons) if issued a non-immigrant visa. Common examples of non-immigrant visa are the tourist visa (B1/B2), student visa (F-1), employment visa (H-1B), among others.
Someone who is willing to invest substantially in the US can also obtain a non-immigrant visa called the E-2 treaty investor visa. In this type of visa, the investor is allowed to legally stay in the US to work in a business where substantial cash investment was made by that investor or other citizens of the country of origin. It is however required that the country of origin must have an existing treaty of commerce and navigation with the US. The US Department of State maintains a list of treaty countries.
This type of visa should not be confused with the EB5 immigrant investor visa which requires a minimum investment of $1,000,000 or $500,000 for investment in high-unemployment or rural areas. The E-2 does not require a minimum dollar investment provided that the same is substantial.
Under USCIS rules, the potential investor must have the following qualifications:
• “The investor, a person, partnership or corporate entity, must have the citizenship of a treaty country.
• “If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
• “The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
• “The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• “It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
• “You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
• “You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
If you are contemplating of filing any other immigrant or non-immigration application, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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