Employment Based Visas - Investor Visa
The U.S. Department at Kan-Tor & Acco is able to navigate complex fields of law governing work and entry permits. Drawing on our rich experience in international personnel transfer and relocation, regional consular processing law and varied business and legal contracts, Kan-Tor & Acco unifies the global marketplace by facilitating the swift and efficient transfer of personnel to the United States.
While concurrent developments in U.S. immigration policy and procedures make it increasingly difficult to transfer vital corporate staff, KTA is prepared to offer the best service possible to keep up with the rapid expansion of a global high-tech market and help you and your staff navigate the process with ease.
The E-1 visa is contingent on the existence of a trade treaty between the U.S. and a given country. The treaty is designed to promote bilateral trade and permits Israeli nationals and citizens of other qualifying countries to apply for E-1 visas which will allow them to work in the U.S.
How can a company qualify for E1 status?
The E-1 nonimmigrant classification is issued to an Israeli organization which meets the regulatory requirements relating to nationality and trade:
"Nationality". For E-1 purposes, the majority (50%) of the issued shares of the ultimate parent company must be held by Israeli nationals. The nationality of the persons owning the corporate stock is their country of citizenship. Shares which are traded on a public exchange are assumed to have the nationality of the country in which the exchange is located. When there are several companies in the line of ownership this analysis must be undertaken by each company, and the 50% requirement must be met at each level. Israeli nationals who are also U.S. citizens or legal permanent residents do not qualify as “Israeli nationals” for purposes of meeting the 50% requirement.
"International trade". Under the international trade requirement, at least 50% of the company's international trade must be carried out between Israel and the U.S. "International trade" refers to the total of all exports and imports, of products and/or services.
The trade must be “substantial” based on the volume of trade, the number of transactions, and the existence of a continued course of trade. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.
What are the requirements for the E1 Employee?
An Israeli national can qualify for E-1 status if they have the requisite experience to either assume an executive or supervisory position or perform services which are “essential to the efficient operation of the business”. There is no requirement that the visa applicant was previously employed by the petitioning company.
What are the benefits of the E-1 visa category?
- No prior employment with the company is required.
- Process Flexible: The E-1 visas are issued by the U.S. Embassy – Tel Aviv Branch in Israel
- Visa-processing time per employee will be significantly shorter than the time required for other visas which must be filed with USCIS.
- Spouses may obtain work authorization for employment in the U.S.
- E – 1 status for both the Company and the employee can generally be extended with no time limit as long as the basic criteria continue to be met.
- Generally E-1 employees receive visas for 5 years, and the E-1 status of the company is valid for 3 years.
- What is the E1 application process?
- The E-1 application process varies from post to post. The U.S. Embassy – Tel Aviv Branch has very specific documentary requirements for the E-1 application process. A petition letter for the company, the employee and supporting documentation is submitted to the Embassy by registered mail. Once the file is reviewed the E-1 visa applicant will be invited to an interview and Attorneys are permitted to attend.
- Upon company approval additional E-1 visa applicants may schedule a visa interview through the online system. The applicant must provide a petition letter and additional required documents at the time of visa interview.
Can I apply for the E-1 visa while in the United States?
If USCIS authorized a Change of Status to E-1 while the visa applicant was in the United States, that status is valid as long as the applicant remains in the United States. In order to return to the US after exiting, you must obtain an E-1 visa at the U.S. Embassy. This requires the submission of a complete application on behalf of the petitioning company and proposed employee. The process is as referred to above.
E-2 is an investor’s visa which provides an opportunity for qualifying entrepreneurs to enter and work in the United States in order to develop and direct their U.S. business. The E-2 can be used to start a business or buy an existing business. Key employees of the qualifying company, who are Israeli nationals, or nationals of the relevant treaty country, can also be eligible for E-2 status.
How can a company qualify for E2 status?
The E-2 nonimmigrant classification is issued to a qualifying organization which meets the following regulatory requirements:
"Nationality" - For E-2 purposes, the majority (50%) of the issued shares must be held by nationals of the treaty country. Foreign nationals who are also U.S. citizens or legal permanent residents do not qualify as for purposes of meeting the 50% requirement.
2. “The Investment” - You must have invested or be actively in the process of investing, which requires that you:
Show legitimate “Possession and Control of the Funds” - The investor must own and control the capital invested in the business, and be able to identify the legal source of the funds. The funds may come from inter alia, a business, family, property owned by the investor, inheritance, savings and gifts. There are specific criteria for the use of loans as part of the initial investment.
All funds invested are “At Risk” & Irrevocably Committed” - The E-2 investor must establish that funds have already been invested, or, that he/she is actively in the process of investing in the U.S. company. The investor must demonstrate that the capital has been irrevocably committed to the proposed E-2 business to the point of no return. The investment must not be “speculative” or unsubstantiated.
Your investment must be “Substantial” - There is no set monetary minimum as to how much capital must be invested. Instead, the investment must be enough to ensure, to a reasonable extent, that the business invested in is not speculative, but is, or soon will be, a successful enterprise as a result of sound business and financial judgment.
The investment must be:
- Substantial in relationship to the total cost of either purchasing an established business or establishing a new one.
Sufficient to ensure the investor’s financial commitment to the successful operation of the business.
Of a magnitude to support the likelihood that the investor will successfully develop and direct the business. The lower the cost of the business, the higher, proportionately, the investment must be to be considered substantial.
- Your Investment Cannot Be Marginal
A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the investor and his or her family. A new business might not be considered marginal even if it lacks the current capacity to generate income if it can be shown the business has the capacity to generate income within five years from the date that the investor’s E-2 classification begins.
- The Business Must Be Operational
In order for the company to receive E-2 status, it must be shown that the business is already in its “operational stage”, such as the production of goods or the actual provision of services has begun. As a rule, you cannot apply for a visa if the business is not ready to start business activities immediately upon receipt of the visa.
- You Must Be in a Position to “Develop & Direct” the Business
The investor may apply for E-2 status as the owner of the company or the owner may send key employees who qualify based upon nationality and hold the requisite skills to “develop and direct the enterprise”. An employee must meet the following eligibility requirements:
Be engaging in duties of an executive or supervisory nature; or
If employed in a lesser capacity, have special qualifications which make the employee’s services “essential” to the efficient operation of the business.
What are the benefits of the E-2 visa category?
There is no required investment amount.
The investment may consist in part of borrowed funds.
The E-2 Visa can be obtained by either purchasing an existing business or creating a new business in the United States.
E-2 investors/employees can receive initial ability to enter and work in the U.S. for 2 years.
There is no limitation as to the number of extensions, as long as the company continues to meet the requirements of the visa.
No prior employment with the company is required.
Spouses may obtain work authorization for employment in the U.S.
What is the application process for the E-2 visa?
It is important to note that the E-2 application process varies with each consular post.
The U.S. Embassy – Tel Aviv Branch has very specific documentary requirements for the E-2 application process. A petition letter for the company, the employee and supporting documentation is submitted to the Embassy by registered mail. Once the file is reviewed the E-2 visa applicant will be invited to an interview. Attorneys are permitted to attend.
Upon company approval additional qualified E-2 visa applicants may schedule a visa interview through the online system. The applicant must provide a petition letter and additional required documents at the time of visa interview.
Can I apply for the E-2 visa while in the United States?
If USCIS authorized a Change of Status to E-1 while the visa applicant was in the United States, that status is valid as long as the applicant remains in the United States. In order to return to the U.S. after exiting, you must obtain an E-1 visa at the U.S. Embassy. This requires the submission of a complete application on behalf of the petitioning company and proposed employee. The process is as referred to above.
The E-3 classification is only available to nationals of Australia. The services to be performed in the United States must be in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
What are the requirements for an E-3 specialty occupation visa?
To qualify for an E-3 visa, the beneficiary must prove, among other things:
You are a national of Australia;
Have a legitimate offer of employment in the United States;
Possess the necessary academic or other qualifying credentials;
Will fill a position that qualifies as a specialty occupation.
How do I apply for an E-3 visa?
You have the right to apply at any U.S. Embassy or Consulate which processes nonimmigrant visas, but you cannot apply from within the U.S. If you are applying at an Embassy outside of Australia it is recommended you first check to see if they accept E-3 applications.
What is required for submission of an E-3 application at the Embassy?
In addition to completing the Form DS-160 you should provide the following documentation at the time of interview:
A certified Labor Condition Application (LCA) that indicates that it has been filed to support an E-3 classification.
Academic or other credentials demonstrating qualifications for the position.
Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation.
What is the period of stay for an E-3?
The E-3 beneficiary is issued an initial period of stay for 2 years. The Beneficiary can extend for an additional 2 years per extension, with no maximum number of extension limitations, with some exceptions.
Can family apply with a principal E-3 applicant? What are they entitled to?
An E-3 nonimmigrant worker’s spouse and unmarried children under 21 years of age are entitled to dependent E-3 classification. The dependent must make a separate visa application, which involves completing the DS-160 form, paying the application fee, and scheduling a visa interview with a U.S. consular officer. Your spouse is entitled to apply for work authorization, but not your children. To apply for work authorization as a spouse of an E-3 nonimmigrant, your spouse must file a Form I-765, Application for Employment Authorization
The Treaty Investor visa (E-2) is for individuals intending to go to the United States to develop and direct the operations of an enterprise in which the national has invested; or is actively in the process of investing a substantial amount of capital.
A treaty investor must be a national of a country in which the U.S. maintains a treaty of commerce and navigation. You must be going to the U.S. to invest in a new or existing enterprise.
The investment may be for the purpose of establishing a new business venture or for purchasing a pre-existing business. If establishing a new business in the U.S., the investor must be able to prove that the business will generate profit and will employ American employees.
There is no such required amount, however, the investment must be a substantial amount of funds from your own pocket and be invested only for the purpose of the business.
An E-2 investment can be made in various ways: cash, equipment or stock. Rent payments and intellectual property can also be considered as part of the E-2 investment capital.
The nature of the E-2 investment must be in a bona fide enterprise – a real, active commercial or entrepreneurial undertaking which produces services or goods for profit.
The investment must be substantial in which it must be able to create work for local residents. The investor must have the required skills needed in order to make business minded decisions and implement them.
The investment. It is not possible to obtain an E-2 visa if a substantial amount of capital has not yet been invested. The capital needs to be invested in a way that cannot be refunded, even if the visa is not issued.
You must be in the U.S. for the purpose of developing and directing the business you invested in. In addition you must own at least 50% of the business or be in a managerial position.
The employee of a treaty investor may also apply for an E-2 visa. The employee must hold the same nationality as the principal employer and must engage in executive/supervisory duties or hold specialized knowledge.
In general, the E-2 visa will be issued for 5 years with the ability to apply for extension.
Yes, spouses and unmarried children under the age of 21 can obtain derivative E-2 status. Dependents can engage in employment after application to receive an employment authorization document (EAD).
In general, E-2 visa applications are submitted to the US Embassy in Tel Aviv (The US Consulate in Jerusalem does not handle this type of visa). For additional information on the E-2 application process, please go to http://israel.usembassy.gov/consular/niv/evisas.html.