United States Of America (USA)

United States Of America (USA):

E2 Visa: The E2 Treaty Investor visa allows the investor to live and work in the US to direct and develop the business, and allows entry of Executive, Management and Essential skills employees. In larger businesses management and executive level employees may be sent to the US instead of the owners of the business. Employees that are also nationals of the same E2 visa Country as the investor may also qualify for an E2 visa. The E2 visa can continue to be extended indefinitely as long as the business continues in the US. Unlike the H1B visa category, there is no quota for E2 visas. The investment necessary to qualify for E2 Treaty Investor Status varies and there is no set minimum. For consultancy businesses, for example software businesses, this could be tens of thousands of dollars or less in some cases. However, for smaller investment to register the business as an E2 business can be more difficult.

E2 Visa investment requirements

When you apply for E2 registration of a business you need to be in the process on investing money. Unless an escrow arrangement possible, you should show that you have made a substantial investment before applying. An escrow arrangement is possible in some circumstances. For example, if you are buying an existing business money could be held in escrow to only be invested if you are granted an E2 visa. You should have realistic plans to establish and fund the business. Usually, the qualifying E2 visa business should eventually create employment for US citizens and residents of the US. Nationals of many Countries can apply under the E2 visa scheme. Unfortunately, nationals of India and China cannot apply under the E2 visa scheme unless they wish to gain entry as a spouse of an E2 visa holder or can gain some other citizenship. Some Indians are applying under the fast Grenada citizenship program to become eligible to apply under the E2 Treaty Investor Visa scheme. Even if you have to apply for another citizenship first under a Citizen Investment scheme, this is probably still a cheaper and faster alternative to the EB5 immigrant investor program that has greatly increased in cost since 21 November 2019 to minimum investment of $900,000.

The investment used to qualify for an E2 visa must be in an active and operating business that requires people to work in the business. Therefore businesses that do not require any employees which could include passive investments in say property or stocks and bonds do not qualify. Usually at least part of the investment should have been made or money should be held in escrow before applying for E2 Treaty Investor Registration and E2 visa status. If you are buying an existing business it may be purchase agreement with the money being held in escrow, with the investment only going ahead if the visa is granted. The business needs to be registered as an E2 Treaty investor business before you can apply for an E2 visa.

E2 Visa and Escrow Agreements

Many investors are worried about investing money even before they have been granted a visa. It may be possible to have money held in an escrow account only to be spent if the E2 visa is issued. The following are some examples where this might be feasible:

You are purchasing an existing business. The money would only be transferred to the seller if the E2 visa is granted.
You will be spending money on a lease agreement. The money would only be transferred to the landlord if the E2 visa is granted.
You will be spending money on some equipment. Again only to be transferred if the visa is approved.

E2 Visa is much cheaper than the EB5 Immigrant Investor Green Card

For investors who do not wish to invest at least $900,000 under the EB5 immigrant investor Green Card Program the E2 treaty investor visa category (or possibly the L1 visa) is worth considering. You will usually need to create employment in the E2 treaty investor scheme, but unlike the Eb5 immigrant investor visa scheme you do not need to create employment for a minimum of ten people and there is no visa quota.

E2 Visa Consular Processing or Change of Status

In most cases it is recommended that Consular Processing is used and an application is made at an US Embassy abroad.

E2 Treaty Investor Applicant Requirements

Investor from qualifying countries may apply for an E2 treaty investor visa in order to ‘Direct and Develop’ their business. They may also apply for E2 visas for key managerial and specialist employees which can be particularly useful for medium and large size businesses.

In contrast to the L-1 visa, there is no requirement that such employees have worked for the business outside the US for a set period of time, and there is no requirement that under the E2 visa scheme that the business continues operating outside the US.

E2 Treaty visa application process

You contact us
YCS considers the application. If your company, the position and the candidate are eligible for registration as an E2 Treaty Investor, we e-mail to you:
A formal instruction form to return
Details of any additional data required, and confirmation of which documents we need.
You email and/or provide documents for the application.
YCS completes your E2 Treaty registration application and submit it to the Treaty Visa section at the appropriate US consulate or Embassy.
After registration as an E2 Treaty Investor business, visas can be obtained for principal applicants, employees and dependants in about two weeks. You provide us with relevant information and we prepare and submit the application to the Treaty Visa section.

E2 treaty Investor applicants should meet the following conditions:

There has been a substantial investment in the US or in some circumstances money is held in escrow to be transferred if the E2 visa is granted. There is no specific investment requirement. Some businesses, for example in the IT sector, may qualify with investments of about $10,000. Investments could include travel, sales and marketing, equipment purchases and a range of other expense. However, E2 visa registration with smaller levels of investment can be more difficult.
Money has been put at risk for the E2 Treaty Investor Business: the investment must entail some risk to the investor (it may not be all in the form of unguaranteed credit). You may need to have an office lease agreement in the US. If you have a purchase agreement and are taking over an existing business, you can instead have money held in escrow.
The investor will direct and develop his/her investment. E2 visa treaty investor with the requisite nationality will usually need to have at least a fifty percent ownership and control of the US business.
The enterprise is (or will be) active. In order to be ‘Directing and developing ‘their investment, the E2 Treaty Investor should be involved in managing the business.
The E2 business should not be considered to be “marginal”. US workers are (or will be) employed. The treaties envisage more than just creating a job for the principal investor, but there is no requirement to employ a particular number of US citizens or residents. It should be possible to meet the requirements by employing only a small number of employees. Showing that you will employ two or three employees in the next one or two years will often be enough.
You should have a business plan detailing the future plans for a new business. This should have detailed information on the new business and the plans to employ new staff in the US.
Details of the skills, qualifications, and work history should be provided for any prospective employees of the E2 Treaty Investor, and if appropriate for the investor themselves.
That the principal investor, and any other E2 visa staff, must be able and willing to leave the US upon termination of their E2 visa status, since the E2 is a non-immigrant visa category. However, the E2 treaty investor visa can continue to be extended indefinitely.

E2 Visa Employees:

Once the principal applicant has obtained registration as an E2 Treaty Investor they can obtain E2 visas for qualifying employees who are the same nationality as investor. Obtaining the E2 registration could take some months, and obtaining E2 employee visas usually takes about two weeks.

Two types of employee qualify for E visas:

E2 Executives, Managers and Supervisors

Executive and Managers should be in a senior position and manage the whole business or a key part of the business. In larger businesses the owner of the business may not actually in practice spend much time in the USA. Such personnel should able to demonstrate their executive or managerial pedigree, though there is no requirement they have worked for the principal trader or investor for at least one year in the last three years, as there is with the L-1 visa.

Documents required for the application would likely include job description, resume and supporting letter from the employer.
This is a good way of employing highly skilled level people over in the US. You should demonstrate that:

The employee has specialized knowledge of the business which may be difficult to find in the US.
The employee is necessary for the running of the principal trader or investor’s business in the USA.

Note that, depending on nationality, a’ Visa issuance fee ‘of $105 is often required in addition to the usual visa application fee for E visas.

Family and dependants of E2 visa holders

Spouses and dependants of E2 visa workers are can also apply for E2 visas, and will normally be granted the same period of stay as the principal E2 visa holder. E2 spouses and dependants do not need to be the same nationality as the principal applicant.

Spouses are allowed to work. However, it is probably advisable to apply for work authorisation which may take a few months. Children under the age of 21 can study but unfortunately are not to work under the E2 Treaty Investor visa category. Children after reaching the age of 21 years of age under E2 visa status will need to find some other US visa category to be able to stay in the US.

EB-5 Investment Immigration Program:

The Eb-5 Investment Immigration Program offers a fast-track route to the US green card to applicants fulfilling the prescribed investment and job creation requirement.

As an addition to the traditional EB-5 program, the Immigrant Investor Visa Pilot Program, enacted in 1992, offers foreign investor applicants the option of qualifying for the visa through Regional Centers investments. Setup an alternative to the direct investment option available under the ‘traditional’ program setup in 1990, this temporary program has received numerous extensions and is currently valid through February 15th, 2019.

The EB-5 U.S Immigrant Investor Program is available to Indian citizen who can make a capital investment into a commercial enterprise:

US $ 900,000 (Approx. INR 6.5 cr) US $ 1,800,000 (Approx. INR 12.9 cr) depending on geographical area;
* In a new business;
* That creates 10 full-time jobs for US workers in a targeted employment area.

The US Citizen and Immigration Services allows 10,000 EB-5 visas a year.

Recently, the Reserve Bank of India (RBI) in its monetary policy review enhanced the remittance limit under Liberalised Remittance Scheme (LRS) to $ 250,000 per person per year.

Process Steps for EB-5 Visa:

Immigration via the EB-5 visa route to a lawful permanent resident involves the following steps.

Complete preliminary steps like finalising your investment adviser and immigration attorney, identifying the right investment vehicle, and initiating the investment process.
Begin the formal application process by filing the Form I-526 petition with the US Citizenship and Immigration Services (USCIS)
Deploy the investment post I-526 petition approval and apply for two-year conditional permanent residence for self and eligible dependants.
Within 90 days of expiry of conditional permanent residence, file Form I-829 for removal of conditions on the permanent residence status.
If the minimum investment and job-creation requirements were met throughout the process, then the conditions will be removed and the applicant and eligible dependants will acquire permanent resident status In the USA Personal Real Estate purchase such as a house does not count as a qualifying investment.

Advantage and benefits for Indians:

Immigrating to the US through the EB-5 program will help you, the entrepreneur and your family members (spouse and unmarried children under 21) enjoy the following benefits.

Assured route to permanent residence as long as you fulfil the minimum investment and job-creation requirements with no risk of political rhetoric or popular opinion impacting your immigration status.
Complete freedom to travel and reside anywhere within the country.
Get jobs, including government jobs, or setup one or multiple businesses, or simply lead a retired life without any employment or sponsorship-related restrictions.
As a permanent resident, your unmarried children can: o Study in some of the best institutions in the world without facing restrictions imposed on foreign students.
Pay 150% to 300% lower tuition fee as compared to foreign students o Enjoy more funding and scholarship options as compared to foreign students.
Study as a day scholar and avoid long separation from family just to obtain quality education.
Explore job opportunities without worrying about issues like work permits, sponsorship, processing delays, expiry of visa, or restrictions on job mobility
Your souse will automatically be granted the green card, which means he or she can live, work and travel just like any other permanent resident without any spouse-centric legal restrictions.
Enjoy greater international mobility through the visa-free travel privileges available to US green card holders.
You can, subject to applicable eligibility requirements, apply for American citizenship and can retain your Indian roots by applying for overseas Citizen of India status.

Proceeding with your EB-5 Application:

Although a very attractive route to fast-track permanent residence in the USA, the business investment visa process is not completely devoid of risks and complications. Some risks that Indian applicants will have to provide for include:

Choosing a professional adviser who is qualified and legally authorised to provide both immigration and investment-related services in the US
Comparing pros and cons diligence of various projects, and verifying the credentials and antecedents of the party setting up and managing the project in the US
Creating viable business plan, and finalising the terms and conditions of the investment contract with the enterprise when residing in India
Assessing investment and job-creation potential of the project and carrying out continued due diligence and tracking to ensure compliance throughout the application process. This program was created to combat high unemployment and stimulate economic growth in rural areas
Completion of all immigration formalities in a time-bound manner to minimise delays and consequent investment and legal risks

The process may seem more complicated because there is no American employer/sponsor offering to assist you with the formalities. Further, you will have to initiate, track and complete all formalities, including the actual investment, without an established presence in the country.

That is why the most effective way to minimise risks and potential complication and to secure investment and immigration assistance is to choose the right professional intermediary to represent your interests at the YCS.

Intra Company Transfer Visa/ L1 Visa

The United States L1 visa is a non-immigrant visa which allows overseas companies to transfer employees under two types of L1 visa schemes. For L1 visa transfers of executives and managers including business owners for up to seven years there is the L1A visa, and for specialized knowledge employees the L1B visa allows entry for up to five years to a new or existing US office. To qualify for an L1 visa the employee, which can include business owners, must have worked for a subsidiary, parent, affiliate or branch office of the US Company outside of the US for at least one year out of the last three years.

One of the benefits of the L1 visa is that there is no quota. Unlike in the case of the H1B visa category, an unlimited number of visas can be issued. However, unless the company is a very large company with blanket filing a considerable amount of documentation needs to be submitted for each L1 visa petition to the USCIS in duplicate. Indians and Chinese nationals are able to come under the L1 visa category. They are unable to come under the E2 visa and E1 visa which is limited only to certain nationalities

Business owners can also apply for L1 Visa

This can be an excellent way for businesses including small businesses to expand into the US with a minimal investment. However, the business outside the US should continue trading even after the L1 visa holder has entered the US should continue trading even after the L1 visa holder has entered the US. Business owners who have worked for the business outside the US for one year in the last three years, wishing to set up a business in the US can apply without having to make a large investment of at least half a million dollars as required under the EB-5 Immigrant Investor Scheme.

L1 Visa and Employment Based EB1C Green Card

The requirements for employment based immigration (permanent residence) under the EB1C immigrant scheme are similar to the requirements for the L1A Executive and Manager Visa category. Many overseas executives and managers including business owners come under the L1A visa scheme first and then apply at a later date for EB1C as an international manager or executive which is one of the best ways of gaining an employment based immigrant visa (green card).

As you need to show that you have worked for the business outside the US for at least one year in the last three years, you need to apply for the EB1C immigrant visa within two years of entry to the US on an L1 visa. The business needs to have been established in the US for at least one year before you can apply under this green card scheme.

Companies operating in the US can apply to the relevant USCIS service center for an L1 intra-company transfer visa to transfer someone to the US from their overseas operations. Employees in this category will, initially, be granted an L1 visa for up to three years. For a new office (that has been in operation for less than a year) the L1 visa is granted for one year.

There are two types of employee who may be sponsored for USA L1 visa:

L1 A Executives and Managers

L1 visa requirements for management and executive’s role for these purpose is quite strict, and a detailed description of the duties attached to the position will be required. In particular, the executive or manager should have supervisory responsibility for professional staff and/or for a key function of the department or subdivision of the employer. Such personnel are issued an L1A visa, initially for a three year period extendible in two year increments to a maximum of seven years. For a new US office entry for an L1 visa is granted for one year.

L1 B Specialized Knowledge Staff

This category covers those with knowledge of the company’s products/services, research, systems, proprietary techniques, management, or procedures. This should be explained in some detail when applying for the L1 visa. Staff in this category is issued an L1B visa, initially for three years extendable to a maximum of five years.

On completing the maximum allowable period in L1 visa status, the employee must be employed outside the United States for a minimum of one year before a new application is made for L or H status.

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