Small Business Immigration

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One of the most commonly used visas for the new immigrant communities is the E-2 (non-immigrant) investor visa category. Nationals of countries, which have a treaty of commerce and navigation with the U.S., are allowed to live and work here so that they can successfully manage and direct a 'substantial' investment. The true rationale behind this visa status is that free trade and investment will result in economic benefits for both the U.S. and the treaty nation. Often not truly understood, however, is the notion that the investment should result in job opportunities for the local population and the investment itself cannot be the sole means of support for the investing individual (and/or family).

Although all E visas were created under the same principle, larger companies prefer to use E-1 whereas small and medium-sized companies utilize E-2. When companies, which have substantial international trade, use E-1 or E-2 to transfer their employees to the U.S. operation, the transfer to permanent resident status for these visa holders can be processed fairly quickly, if desired later. I will discuss such cases in a future article. In this article, I would like to explain the small business economy driven on the wheel of E-2 visa.

From my experience with the new immigrant communities, I observed that a typical foreign E-2 investor would purchase a grocery, dry cleaners, or gas station for family business. While some families have a successful E-2 business and thus enjoy a stable status, other families suddenly lose their business for reasons beyond their control (e.g., lease dispute with the landlord, economic downturn, natural disaster, etc.) and realize they no longer have a legal status in the U.S.

E-2 investor visa status allows the visa holder to make business investment and work for that business operation in the U.S. For entrepreneurial foreigners, this seems to be a perfect visa status as it allows them to open up their own small and medium-sized businesses.

In order to receive an E-2 visa, the investor must have a clear business plan and make substantial and irrevocable investment with a goal to eventually create some employment. The investor must also intend to return to home country once the investment is over. There is no minimum amount for such investment. Rather, it depends on the type of the business operation. Some businesses will require a large initial investment in the infrastructure and others will require less. However, the investment should be sufficient to ensure the successful operation of the enterprise and, as stated above, not be merely a means of supporting the individual entrepreneur and his/her family

With E-2 visas, one can stay in the U.S. as long as one's investment continues. Once the invested business closes down, the authorized stay is over, and E-2 visa holder and the dependent family must leave the U.S. or change to anther status.

The advantages of E-2 include an opportunity for the principal investor to own and manage a U.S. business with a relatively small amount of investment and subsequent opportunity for the family members to study and/or work in the U.S, if qualified to do so under another visa category (such as H-1B). Also, family members, as owners, can work in their own business entity. In this regard, E-2 visa holder and his/her family enjoy similar privileges as U.S. permanent residents or citizens.

Nonetheless, E-2 is a temporary 'non-immigrant' status and does not give any long-term stability. The privileges I mentioned above are tied to the business. Even if the business continues, when minor children reach 21, they are not considered dependent members any more and must change to another status, such as F-1.

E-2 should also be separated from investment immigration. In general, investment immigration requires at minimum $1 million investment and the creation of 10 new jobs. Because of these stringent requirements, investment immigration category is one of the most underused categories, and there are usually better ways of going about immigration.

Although E-2 visas rarely lead to a greencard since the investment itself is not large enough nor create the requisite 10 new jobs, if desired later, obtaining permanent residency may be possible with creative and thoughtful strategies, depending on many other factors including job skills.

For the above reasons, it is always wise to speak to a qualified immigration attorney to go over and strategize before utilizing this visa category since in the long term it may be a perilous decision. One must ask, what is the goal to be achieved? Is it simply to do business in the U.S., to make money, or obtain permanent resident status for you and/or one's family members? A hasty decision can not only lead to an unnecessary complication in one's life but also complicate one's future immigration goals.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

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