Frequently Asked Questions

If you are new to our website, we first recommend you to read the "Easy as E-2" section at http://www.e-2california.com/easy_as_e2 to understand the key E-2/E-1 concepts, as well as the "Process" section at http://www.e-2california.com/e2_process to understand the basic procedural steps involved in steps that an E-2 investor need to take. If you believe these materials to be helpful, then you should register as a registered user, which will allow you to use the "Search" feature on the top right location and then to be able to view attached files. You may also wish to sign up for E-2 Newsletter subscription located at the right side.

Feel free to email us at e2advisor@gmail.com if you have a suggestion on how we can improve our website and what additional information you would like us to cover.

First, you should study the requirements of each visa and then analyze your situation before you decide, but the main difference is while an E-2 requires that you take a managerial or supervisory role in the E-2 enterprise in which you are committed to making "substantial" investment in a "non-marginal" U.S. business, while an E-1 requires that you take a managerial or supervisory role in the E-1 enterprise which is (not will) doing more than 50% of its "international trading" between the U.S. and your home country. Therefore, with an E-1 visa, if the trading requirement is met, you do not have to invest too much money in the E-1 enterprise, just what is required to run the U.S. based E-1 enterprise.

First, you should study this site to find out which visa among E-2, E-1 and L-1 is most suitable for you? In addition, without your realizing it, you may already be eligible for EB-1 multinational executive/manager immigrant category if you have a company in your home country and an "affiliated" company in the U.S. Or an EB-5 case might be suit you the best.

Second, you should lay out a brief plan on the steps you have to take and then find out as much information possible on executing such plan.

Third, you may wish to consult an immigration attorney about aspects of U.S. immigration law which you do not have clear answers on.

Fourth, you may wish to retain a professional to find a suitable E-2 enterprise business if you decide to pursue an E-2 visa or status.

No, that is not a requirement. You can submit the case yourself if you can prepare the case thoroughly and know the requirements. However, at minimum, you might want to receive a detailed consultation from an experienced E-2/E-1 immigration attorney BEFORE you begin you take definitive actions, and then also get a thorough review by the experienced E-2/E-1 immigration attorney BEFORE you submit the case.

Our view is that if you are fluent in English language and you are the type of person who is used to having presented some type of applications to governmental agencies or made business presentations, you can prepare E-2/E-1 visa applications yourself, without fully being represented by an immigration attorney. However, we believe you probably would need an experienced U.S. immigration attorney advising you and reviewing your work. In addition, because of internet and computer technology, your work can be reviewed. We offer special services to "Do-It-Yourself" E-2/E-1 cases.

The employee applicant must possess the same nationality as the U.S. based E-2 enterprise. Therefore, if the U.S. based E-2 enterprise is owned by a foreign company, the applying employee must possess the nationality of the majority shareholders of the foreign company. The applying does not have to possess the same nationality as the CEO of the U.S. based E-2 enterprise unless the CEO is the majority shareholder of the U.S. based E-2 enterprise. CEO also is an employee, not necessarily the owner.

Yes, but depending on consuls who might decide that the position can be done by a U.S. worker who can be trained, especially if multiple chefs are applying for E-2 visas for the same restaurant. Review 9 FAM 41.51 N14.3 for further guidance. Lastly, consider applying for an E-2 managerial position if the chef will have a managerial responsibilities.

The DOS maintains the list below:

http://travel.state.gov/visa/fees/fees_3726.html

Let's examine what DOS says are specific requirements of E-1 visa.

The applicant must be a national of a treaty country.

The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.

The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade.

The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality.

Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.

The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

Let's examine what Department of State (DOS) says are the requirements of E-2 visa.

Requirements: Treaty Investor

The investor, either a real or corporate person, must be a national of a treaty country.

The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.

The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.

The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.

The investor 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.

The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

You can try, but the consular officer or USCIS examiner is not obligated to take that into account in arriving at his or her decision on the "marginality" requirement. Why? That's because long time ago, DOS changed the marginality FAM section to disallow the applicant's wealth aside from the E-2 enterprise to meet the marginality requirement.

Having said this, some people might not be aware of this, so you can try to use this fact, but don't go overboard and state that your client-investor is the Bill Gates.

Let's first examine what the FAM says:

Generally speaking, the answer is "yes". 9 FAM 41.51 N.12. allows "negative control," where 50% owner can develop and direct the E-2 enterprise based on 50% ownership.

Having said this, it all depends on the facts of the case, so a detailed consultation with an experienced E-2 immigration attorney is encouraged.

Because the law says so. Legally, the regulations state that the funds must be "irrevocably committed" to the investment before the visa or status may be granted. This requirement must be met by either showing that the investment has already been made or is actively in the process of being made. Also, funds can be considered to be irrevocably committed, however, if they are held in an escrow account solely contingent on the issuance of an E visa.

Practically, no consular officer or USCIS examiner would feel comfortable granting visa or status based on your words that you are going to make an investment. It's called "put your money where your mouth is" or "talk is cheap" law.

As much as needed to get the E-2 visa. :) Seriously, there is no set amount; sometimes I wish there was. The regulations only say "substantial" amount need to be invested. What the heck is "substantial"? The true answer is whatever the amount the consular officer or USCIS examiner thinks it is.

Many people -- specialists and non-specialists -- say that amount is $200,000 USD, but we say that is just a number and really meaningless. You have to look at the overall picture of the investment, business and investor. In this sense, getting E-2 visa is almost like an art in mixing ingredients to come up with a persuasive case. Having said this, we do not wish to give a wrong idea that one can obtain E-2 visa with $10,000 USD investment.

One thing it should be noted about consular processing of E visas is that a different adjudicating consular officer can make a huge difference on whether your case will be approved or denied. Even though most consular officers decide E visa cases similarly, time to time, new consular officers get rotated to E visa cases for training purposes or other purposes -- which is fine -- but sometimes they really do not have sufficient experience and knowledge of FAM and regulations governing E visas. As a result, I have seen them issue totally weird denials. Therefore, it is very important for people to retain E visa attorneys who are very familiar with the particular American Embassy's practice. The only problem is that reviewing and adjudicating consular officers can change without any notice. As a result, same cases which have been approved previously by one consular officer (more experienced and knowledgeable about E visa cases) will be denied by another consular officer (who is not knowledgeable about E visas but may have been adjudicating F-1 student visa cases).

Assuming that the wife is applying for E-2 spouse visa based on an already-approved E-2 visa for the principal applicant (husband), the consular officer can always review the facts again and also require that the wife prove that she really is a bona-fide wife by asking for wedding photos, invitations, etc.

No, you make E-2/E-1 visa application once you have documentary evidences showing you have met requirements. The procedure and time periods vary among American Embassies, and the official website of each American Embassy should provide detailed information on how, where and what to submit to them.

The TCN processing information is available at: www.e-2california.com/tcn_processing.

Not really. From our experience, consular officers want to see very concise, persuasive business plans devoid of unrealistic claims. Many of the consular officers have seen all kinds of claims made and are business savvy, especially if they are lateral hires who actually have the real world business experiences. Personally, we prefer either consular officers with legal background or consular officers with real world business experiences. We do not prefer consular officers who just graduated from college who sometimes do not understand how the businesses work in the real world.

Not necessarily for the following reasons:

1. Various changes, such as changes with the E-2 business, might have occurred in the meantime that might lead to a denial of 2nd renewal visa application.

2. Different and tougher consular officer may be reviewing your 2nd renewal visa application.

3. The new consular officer might not be as knowledgeable about E-2 visa law.

The preparation and more preparation is the key.

Yes, the dependents can apply for E visas at the American Embassy abroad even when the principal applicant has only E status in the U.S. and is not applying, or has not applied, for a visa together.

Yes, because each visa application stands on its own. In fact, dependent spouse and family member also have to file separate visa applications, although the supporting documents for the E-2 enterprise does not have to be submitted again.

The U.S. Embassy in London processes E visas for all of the United Kingdom. See the U.S. Embassy website for further details.

To qualify for an E-2 visa, you must actually reside in the UK, and documentary proof of this must be submitted with your E-2 packet.

The processing times and procedures vary greatly between different American Embassies around the world. It can vary from 1 week to 6 months, so these are "country specific" information that must be ascertained in advance as a planning guide. To find out correct info, "The Visa Processing Guide", Department of State website or the particular Embassy website would be good sources.

When you obtain the initial E-2 or E-1 visa, you are initially given a visa for a certain period of years, usually 2 or 5 years. If you wish to obtain additional years on your visa, so you and your family members can travel back and forth, you have to apply again or "renew" your current visa at the American Embassy abroad. This is called "renewing" your visa. It should be noted that the "renew" process is not an automatic one: You can get denied if you do not prepare carefully or your E-2/E-1 enterprise is not doing well, etc.

Although the consular officers are authorized to issue E-2/E-1 visas up to 5 years, we notice more frequently that E-2/E-1 visas being issued for 2 years.

As of September 16, 2010, the I-907 Premium Processing Request fee is:

$1,000. Note: If you are requesting Premium Processing on a form type and classification that is Premium eligible, the $1000.00 Premium processing fee is required in addition to all other filing fees required by the application to be processed. Checks should be made payable to Department of Homeland Security.

In addition, there is regular $320 I-129 filing fee for E petition for the principal E worker.

And then, there is I-539 change of nonimmigrant status fling fee for dependents, which is $300.

Go to the "Forms" link at www.uscis.gov and check current fees to make sure.

Because USCIS procedures can change all the time, the best way to check for current filing fees is to read the Instructions for the relevant USCIS forms. You can follow below steps to obtain Instructions for all USCIS forms.

1. Go to www.uscis.gov, which is the official website for the USCIS.

2. Click the "Forms" Menu at the top left.

3. Find appropriate form and click it.

4. You will see Instructions PDF file at the bottom. Click it to read the instructions which contain detailed information on the filing fees and where to file the form, etc. You have to read it very carefully.

Because USCIS procedures can change all the time, the best way to check is to read the Instructions for the relevant USCIS forms. You can follow below steps to obtain Instructions for all USCIS forms.

1. Go to www.uscis.gov, which is the official website for the USCIS.

2. Click the "Forms" Menu at the top left.

3. Find appropriate form and click it.

4. You will see Instructions PDF file at the bottom. Click it to read the instructions which contain detailed information on the filing fees and where to file the form, etc. You have to read it very carefully.

Having said this, as of July 22, 2010, the following is where to file I-129 forms:

California Service Center Filings

File Form I-129 with the California Service Center if the beneficiary is or will be employed temporarily or receiving training in:

Alaska, Arizona, California, Commonwealth of Northern Mariana Islands (CNMI), Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming.

All Other I-129 Cases:

USCIS California Service Center ATTN: I-129 P.O. Box 10129 Laguna Niguel, CA 92607-1012

Courier Address for All I-129s:

USCIS California Service Center 24000 Avila Road
2nd Floor, Room 2312 Laguna Niguel, CA 92677 (Please note the type of I-129 in the attention line)

Premium Processing:

If the classification requested on Form I-129 is eligible for Premium Processing and you wish to request Premium Processing services, use the designated Premium Processing address for the California Service Center, as indicated.

Form I-907/I-129 Regular Mailing Address:

Premium Processing Service
USCIS California Service Center P.O. Box 10825
Laguna Niguel, CA 92607 (Please note the type of I-129 in the attention line)

Form I-907/I-129 Courier Mail Address:

Premium Processing Service
USCIS California Service Center 24000 Avila Road
2nd Floor, Room 2312 Laguna Niguel, CA 92677 (Please note the type of I-129 in the attention line)

Form I-907/I-129 E-Mail Address: CSC-Premium.Processing@dhs.gov

Vermont Service Center Filings

File Form I-129 with the Vermont Service Center if the beneficiary is or will be employed temporarily or receiving training in:

Alabama, Arkansas, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia.

USCIS Vermont Service Center ATTN: I-129 75 Lower Welden Street St. Albans, VT 05479-0001

Premium Processing Service USCIS Vermont Service Center
ATTN: I-129
30 Houghton Street St. Albans, VT 05478-2399

Form I-907/I-129 E-Mail Address: VSC-Premium.Processing @dhs.gov.

If you as a principal applicant is applying alone, then you just need to file I-129 form, but if you have dependent spouse or children, they need to file additional I-539 form.

In less than 3 weeks, or in the event of a RFE, around 4 weeks. Of course, additional Premium Processing Service fee is required, but it might be worth it.

You can travel outside the U.S., but you may not be able to return. :) In order to be able to return to the U.S., you have to obtain a "visa" in your passport. Just because you obtained a E status via a COS does not mean you will be able to obtain an E visa from the American Embassy. There are a myriad reasons for this. Therefore, whenever you decide to leave the U.S. to apply for an E visa at the American Embassy, it is strongly recommended that you consult in advance with an experienced E visa immigration attorney.

Yes, E-2 can be done via either stock purchase or asset purchase, but there are certain precautions prospective E-2 investor should take in purchasing company shares.

Licensing and permit requirements vary among states and depends on the type of business you wish to purchase and operate. Having said this, you need. For specific information, you cna contact the appropriate governmental agencies, or retain the services of a law firm like us to make the inquiries.

You can use your B1 visa or enter on visa waiver program to take a look at the business and do due diligence and purchase the business. Just in case you are questioned at the airport about the purpose of your trip, you should have a letter from the attorney, seller or agent stating that you are entering to take a look at the business and do due diligence, not to operate a business and receiving salary.

If you just want to own and will not be actively involved in the managing of that business, the answer is "no". You can own the business and then enter the U.S. in B1/B2 visa and take a look at the business, etc.

Yes, unless there is a special reason why you do not wish to form a corporation or LLC to purchase, operate and apply for E-2/E-1 visa, you should for mainly two reasons: protection from personal liability and in the event you wish to purchase another business.

No, because E-2 requires at least 50% control of the E-2 enterprise business.

In addition to all the considerations that one should take into account when purchasing an existing business, there are following special considerations the E-2 investor should note when he or she is purchasing an existing business to apply for an E-2 visa or status.

1. E-2 investor should make sure that the subject business meets the requirements for E-2 visa. That means doing a due diligence in light of the E-2 requirements. This is something the E-2 investor should undertake BEFORE purchasing the business, not afterwards.

2. E-2 investor should demand strong cooperation from the seller in providing necessary documents that might be needed from the seller to apply for an E-2 visa or status.

3. E-2 investor should always use an escrow arrangement with appropriate conditions specified in the escrow instructions for the return of the purchase deposit.

4. E-2 investor should request and examine documents related to the "non-marginlity" aspect of the E-2 enterprise business.

5. E-2 investor should strongly consider retaining a law office which can render services and advice for both immigration and business transactional aspects.

Either approach is fine. There are different issues and potential problems associated with either approach.

According to AILA NATIONAL LIAISON COMMITTEE MEETING LIAISON AGENDA, December 9, 2010

Reply: Rafael Henry will look into this issue. CBP requested that the Committee provide examples.

AILA proposes that CBP’s role in admission of E visa admission applicants is to either (a) confirm visa validity (in such cases in which there is one) and to issue a two-year I-94 (absent contravening reasons such as passport expiration) each time, or (b) confirm validity of an I-94 issued related to E status (either issued by USCIS or CBP) and the existence of a prior but expired visa (most likely an E visa for a Canadia

Yes, but you need a valid I-94 Form, and there are exceptions and limitations.

What is Automatic Revalidation?

The Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) has the authority and the responsibility over the admission of travelers to the U.S. Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by CBP, if they meet certain requirements, including, but not limited to the following:

Nonimmigrants who departed the U.S. for brief travel to Canada, Mexico, or an adjacent island (for F and J nonimmigrants) for thirty days or less;
Nonimmigrants with a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS.

For more info, check out:

http://travel.state.gov/visa/temp/info/info_1299.html

http://cbp.gov/linkhandler/cgov/travel/id_visa/revalidation.ctt/revalida...

From a USCIS examiner's perspective, your scenario will be governed by the below CFR provision:

(iii) Substantive changes . Prior Service approval must be obtained where there will be a substantive change in the terms or conditions of E status. In such cases, a treaty alien must file a new application on Form I-129 and E supplement, in accordance with the instructions on that form, requesting extension of stay in the United States. In support of an alien's Form I-129 application, the treaty alien must submit evidence of continued eligibility for E classification in the new capacity. Alternatively, the alien must obtain from a consular officer a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry. The Service will deem there to have been a substantive change necessitating the filing of a new Form I-129 application in cases where there has been a fundamental change in the employing entity's basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed.

The change contemplated in your scenario will be deemed a "substantive change". Note that it says "prior" Service approval must be obtained when there will be a substantive change, which means in the event you plan to sell your E-2 enterprise business, you should obtain a prior approval of I-129 amendment of the change. If you do not plan to continue E-2 status in by purchasing another business, you should change status to another nonimmigrant status such as B-1 or F-1 student status before you sell your E-2 enterprise business. I think that will be the way USCIS will decide.

There is no grace period, so that legally speaking, when the principal E-2 holder died, her status as E-2 dependent disappeared! But if her I-94 stay is still valid, she is not accruing any unlawful presence.

What she should have done or should do now is to try to get herself as the E-2 principal. Or she can try to pursue green card route.

Let's examine what 8 CFR 214.2(e)(19) says on this issue:

(19) Period of admission . Periods of admission are as follows:

(i) A treaty trader or treaty investor may be admitted for an initial period of not more than 2 years.

(ii) The spouse and minor children accompanying or following to join a treaty trader or treaty investor shall be admitted for the period during which the principal alien is in valid treaty trader or investor status. The temporary departure from the United States of the principal trader or investor shall not affect the derivative status of the dependent spouse and minor unmarried children, provided the familial relationship continues to exist and the principal remains eligible for admission as an E nonimmigrant to perform the activity.

(iii) Unless otherwise provided for in this chapter, an alien shall not be admitted in E classification for a period of time extending more than 6 months beyond the expiration date of the alien's passport.

It would seem that USCIS officers have discretion to issue less than 2 years of admission period. Sometimes, they issue I-94 up to the underlying visa expiration date.

Dependent spouses can work without separate work authorizations, but dependent children cannot work.

To answer this question, you have to examine two documents: your visa pages in your passports and I-94 Entry/Departure forms given to you when you entered the U.S. the most recent time or when you received approvals on your COS or EOS applications.

Whether you can stay in the U.S. is determined by the date on your I-94, not on visa page. But sometimes the date on your I-94 form may be the same date as the visa expiration date. For example, if your visa expiration date is August 25, 2010, but your I-94 form says December 25, 2010, then you can stay in the U.S. until December 25, 2010. However, you should not be traveling after August 25, 2010, thinking you can re-enter the United States.

Note that retained earnings of E-2 enterprise does not constitute investment capital for EB-5 case. In other words, the profit the U.S. enterprise earned, kept in its bank account and then reinvested the profits into the company to buy new equipment and expand, do not count as capital investment for EB-5 purpose. In order to count as capital investment for the purpose of EB-5 case, the investor would have to show that the E-2 enterprise has paid its profit to him or her as salary or dividends, and then this money has been invested directly from the individual investor to the U.S. enterprise. I guess the U.S. wants to get its tax money.

Also, you have to see if you created requisite jobs.

Yes, Form I-508 Waiver of Privileges should be included with the adjustment application packet.

An E visa is a non-immigrant visa, which means obtaining E visa or status odes not lead to a "green card".

To answer your question, there is no specific period of time you have to wait before you pursue a green card through various categories if you qualify. For example, you can try to pursue green card through EB-1 multinational executive/manager category or EB-5 case one month after you obtain E visa or 3 years after you obtain E visa.

However, note that pursuing green card has some effect (not fatal) in your ability to renew or extend your E visa or status, or changing to another nonimmigrant status.

The advantages of Regional Center EB-5 case over E-2 visa are:

1. Since E-2 is a nonimmigrant visa/status, obtaining E-2 does not lessen the need to obtain permanent resident status.

2. With RC EB-5 case, you can reside anywhere in the U.S., whereas with E-2 visa, you have to reside near the location of your E-2 business.

3. With E-2 dependent children, once they become 21 years old, they automatically fall out of E-2 status. This means they have to, on their own, apply for a change of status (or visa) to other NIV status -- usually F-1 student status. With RC EB-5 case, as long as the I-526 petition was submitted prior to their reaching 21 years of age, the dependent children's ability to obtain LPR status will not be adversely affected.

4. RC EB-5 Investor does not need to exert energy towards the day-to-day or even primary managerial control over the new commercial enterprise. Specifically, the RC EB-5 Investor can be a limited partner in a limited partnership formed pursuant to relevant Uniform Limited Partnership Act of the applicable state.

5. RC EB-5 Investor can pursue other jobs and/or activities, whereas for E-2 Investor, that is pretty difficult in practice.

6. In many cases, the amount of investment for a RC EB-5 case is not that much higher. Many E-2 business investment requires more than $300,000 USD and even close to $500,000 USD, which is the same amount that RC EB-5 case that also combines TEA feature.

7. With RC EB-5, there is rarely a need to contribute additional capital infusion, but with E-2 investment, additional capital infusion may be required depending on the business situation.

8. There is a greater chance to fail in E-2 investment than with RC EB-5, at least from our perspective.

9. You can invest and acquire a minority interest in the commercial enterprise.

However, E-2 visa has the following advantages over a RC EB-5 case:

1. It can be obtained more quickly -- within 3 or 4 months -- as long as you purchased and made your investment.

2. You can sell and take a loss if something goes wrong. Of course, you will lose your E-2 status unless you purchase another E-2 business.

3. Usually, the amount of investment required to obtain E-2 visa is lower.

4. You will have a controlling interest in your business.

In conclusion, for relatively rich investors, E-2 may not be the best option: If the business turns sour, or the owner is not daily involved in giving all his time and effort into making the E-2 business successful, the business dream of owning a successful E-2 Investor may turn into a nightmare. In fact, former E-2 visa holders who just couldn't continue to lose money and sleep over owning an E-2 business were very motivated to do Regional Center EB-5 cases.

Of course, there may be a reasonable difference of opinion, but any E-2 investor who does not plan on giving most hours of her day into running and managing the E-2 business is advised not pursue E-2 visa unless you have an absolute trust in your business partner.

USCIS Answer: Yes, the jobs created a number of years ago still count, and yes they must be maintained during the conditional resident period.

Whenever applicant in NIV status is considering an EB-5 case, there are issues involving maintaining NIV status. Therefore, a detailed paid consultation is recommended to elicit key facts and then decide on the best course of action.

What my George Washington tax law professor said about the tax law applies equally to immigration law: "Everything about tax law (immigration law) and sex is about the timing."