Month: December 2023

Investor Visa Application Price Increase

Mastering E2 Visa Interview Questions With Expert Tips

US Immigration Advisor

E2 Treaty Investor Visa

An E2 Investment Visa is a nonimmigrant visa that allows nationals of E2 treaty countries to reside in the US with their families. Each E2 investor is required to make a substantial investment in a U.S. enterprise or business.

A treaty country is defined as a country that has a signed treaty with the United States or with a qualifying international agreement, or which has been deemed qualified by legislation. A list of E2 visa countries is available by following this link.

The E2 Treaty Investor Visa allows you to start a successful business in the U.S. and stay in the U.S. indefinitely. The E-2 Visa process for applying for this visa can be complex. After submitting your application and documents, you will need to arrange an appointment to attend an interview with the immigration officer in your local US consulate to answer any questions regarding your application and provide additional information should it be needed.

It is also possible to change status to E2 status from within the United States. As an applicant for change of status is already in the US E2 visa is not initially needed. Once a person and an interview can be avoided. However, upon leaving the US a person in visa status will need to obtain an E2 visa at a US consulate.

E 2 Visa Expectations

An E-2 Visa interview has a number of purposes. An E-2 investment Visa interview serves to not only to verify your identity but also to check any information the visa applicant has provided in their application and to ensure that they satisfy all the requirements of the visa. If you’re the applicant, you may be asked to provide additional information even though you have provided all documents or information needed.

The interview is usually conducted by a consular officer who will ask questions related to your visa application and your future stay in the U.S. The officer may start with a few general and simple questions before going into detail about your application.

If you fail to answer your interview questions or simply fail to attend the interview itself without any reasonable explanation, your visa may be refused. So it’s important to attend and prepare for your interview.

The key to success in an E2 visa interview is to thoroughly understand your business and the business plan.

Preparing for an E2 Visa Interview

There’s nothing wrong with overpreparing yourself for your visa interview, especially since it will determine if you’re qualified for an E2 Visa. To help you prepare for your interview, we’ve highlighted some of the things you need to do:

Lay the groundwork

There’s nothing wrong with overpreparing yourself for your visa interview. You  have to bring necessary documents such as a complete copy of your E2 visa application process and copies of your and your family members’ passports, birth certificates and marriage certificates. Where the US business is already operations we also suggest brining updated business bank account statements to the interview. The interviewing officer may also request additional documents
before your interview, so you should be ready to submit them.

As the requirements at each US consular post vary we strongly suggest that applicants speak with an immigration lawyer experienced with E2 visa interviews at your consulate. They will be able to give more detailed guidance as to documents typically required at interview.

Study ahead of time

The interview will focus on your business and relevant personal qualifications in great detail. You must therefore be able to discuss in your business including source of funds, type of business, industry, and financial and personnel projections. The consular officer will ask extremely detailed questions to see and make sure your business can contribute to the U.S. economy.

Keep a calm composure

There are times that the consular officer will appear unfriendly or rude when they ask you questions, but it’s important to note that their job is to ascertain that everything you have provided is true. Always maintain a calm and professional composure throughout your interview.

Be cordial

Appearing confident during your interview will be helpful but also being warm and friendly. Make sure not to be overly friendly as you still need to appear courteous and respectful as well.

Take you lawyer with you

While some consulates do not allow lawyers to be present at visa interviews others do. Singapore and Zurich are amongst those consulates who have allowed lawyers to attend E2 visa interviews with their clients in the past.

Required Documents for an E2 Visa Interview

There are only a few documents that you will need to show and provide during your interview. A majority of the documents should have been submitted together with your visa application to the U.S. Consulate or Embassy.

  • DS-160 confirmation;
  • A printed interview appointment confirmation
  • A copy of your current and expired passports;
  • Evidence of any previously issued U.S. visas, if any;
  • Two coloured photographs that comply with the U.S. visa photo requirements. You are allowed to wear a headdress if required by the religious order in which you are a member;
  • A copy of the fee payment receipt; and

  • Proof of your nationality or immigration status with your home country such as bank statements, leases, property deeds, etc. It’s important to take note of the active E2 countries to make sure you’re qualified.

The consular officer may ask ahead of time for additional documents that you would need to submit during your interview, so you would need to bring them as well.

E2 Visa Interview Questions and Answers

During the interview process, the immigration officer may ask you a lot of things related to you and your investment. If you’re still nervous about your upcoming interview, we’ve highlighted some of the questions that may be asked to you divided into categories:

General

Why are you going to the U.S.?

Answer the reason why you’re going to the U.S., highlighting that you’re travelling to manage and control the E2 business.

Have you visited the U.S. previously?

Answer with a definite yes or no. The immigration officer may also ask about the specifics of your previous visits if there are any.

Do you have any family members in the U.S.?

Answer with a definite yes or no.

Do you intend to settle permanently in the U.S.?

Since the E2 Visa is a nonimmigrant visa, you need to answer no to make sure that your intent to depart is proven to the officer. Since the officer may want to know if you’re going to permanently live in the U.S., you may also provide evidence of your ties to your home country such as a dependent family member.

Do you have a family in your home country?

Answer with a definite yes or no.

Do you own or lease real estate, and vehicles, or own businesses?

Answer with a definite yes or no.

What do you plan to do once your visa expires?

Answer with your plans and goals after your visa expires.

Personal

What is your current job?

Answer with your current job title in your home country.

What is your source of income?

Answer with any source of income you may have including salary, pensions, and
businesses among others.

How did you meet your business partners? (if you have)

Answer with the reason you met your business partners, including how you
started the business.

How did you get the idea for the business?

Answer how you came up with the business.

Why do you think you’ll have a successful outcome for this business?

Answer how you think your business can give you success, highlighting any
financial trajectory you have.

How will you manage the business in the U.S.?

Answer with your clear plan on how will you manage your business and your
commitment to its success. You need to prove that you will be actively
involved in the management of the E2 business.

What is your long-term plan and goals for the business

Answer with your clear goals and plans for the business, including your
long-term plan. A more detailed business plan outlines your business’
projected outcomes and strategies.

What is your experience in business management?

Answer with any experience you have in managing a business. You may also
provide a resume or curriculum vitae to outline your experience in the
relevant and particular industry of your business.

Are there business interests you are actively involved in?

Answer with a definite yes or no.

What will be your role in the company?

Since the E2 Visa allows you to control the business in the U.S., you have to
answer a role that shows you have control over the business.

Investment-related

Is your investment committed to an active U.S. business?

Answer with a definite yes or no. You can also provide evidence that your
investment is irrevocably committed to the U.S. enterprise.

What are the details and nature of your investment?

Answer with the details of your investment such as the business type,
location, and amount.

How will you finance the investment?

Answer with the legal source of your investment funds. You may also provide
evidence such as bank statements and tax returns.

How much have you invested in the business?

Answer with the clear investment amount that you have placed for your E2
business.

What enterprise are you investing in the U.S.?

Answer with the type of enterprise you have invested in the U.S.

How will the U.S. economy benefit from your investment?

Answer how your investment will create jobs and contribute to the U.S.
economy, such as your plan for job creation or economic growth.

How many people are you planning to hire?

Answer with the number of people you’re hiring for your business, including
your plan on how to pay them.

Where do you think your business will be in 5 years?

Answer with your projection for your business in 5 years. As we have said,
your investment plan or business plan can give you a clear picture of the
trajectory of your investment.

As questions can vary by consulate we suggest contacting us for a list of
questions commonly asked at your consulate.

Maximising Chances of E2 Visa Approval

The E2 Visa application process can get complicated especially with its requirements. Moreover, you have to convince and satisfy the consular officer that you meet these requirements.

An E2 visa immigration lawyer can give you expert advice on how you can maximise your chances of getting approved for the visa. They can also give you an overview of what you can expect for the interview, and a list of relevant documents you can submit depending on your circumstance to cut down the processing time of E2 Visa. Additionally, they can give you advice on what to do should problems or issues arise during your interview and application process.

Take note that you can’t risk getting your E2 visa refused as it carries financial risk to your E2 business and will make you permanently ineligible for the ESTA waiver program.. If you’re not approved, you will  need to hire another person to oversee the business operations.

Us Immigration Attorney

E2 Visa vs EB5 Visa: Choosing the Right Investment Route

US Immigration Advisor

About the E2 Visa

An E2 Business Visa is a nonimmigrant visa which allows a foreign national of a country which maintains a treaty of commerce and navigation or a qualifying international agreement with the U.S., or that has been deemed qualified by legislation to go to the U.S. after investing substantial investment funds in a U.S. business, franchise business, or by creating a new business.

About the EB5 Visa

An EB5 Visa, on the other hand, offers permanent residency to the principal investor in exchange for a minimum investment in a qualifying project or business in the U.S.

Differences:

Immigrant vs Nonimmigrant

One of the main differences between an E2 Visa and an EB-5 Visa is that the E2 Visa is a nonimmigrant visa while the EB-5 Visa is an immigrant visa. Nonimmigrant Visas are temporary visas and don’t directly lead to a green card, while immigrant visas give permanent resident status in the U.S.

This means that under the EB-5 program, the investor is eligible to acquire a green card, which is the evidence of permanent residency.

If you’re an E2 Visa applicant or holder, you need to prove your intent to depart the US once your visa status ends.

Minimum Investment Amount

The other main difference between an E2 Visa and an EB-5 Visa is the minimum investment amount. Foreign investors under the EB-5 program are required to invest a minimum of USD 800, 000 for projects in a targeted employment area (TEA) or USD 1,050,000 for business investment not located in a TEA. A targeted employment area is considered an area where there’s high unemployment or is considered a rural area.

Meanwhile, the E2 Visa doesn’t have a set minimum investment amount. It requires the foreign investment to a US business to be a substantial amount, but there’s no minimum amount that’s considered substantial. Instead, substantiality is determined by the nature and the requirements of the business.

If the business fails, both the E2 investor and EB5 conditional resident lose their status.

Place of Filing

Petitions for an EB-5 Visa are approved and filed before the USCIS before the investor can apply for the immigrant visa at the U.S. Embassy or Consulate or apply to adjust status in the U.S. if already in the U.S. on a valid nonimmigrant status. Meanwhile, petitions for an E2 Visa are filed directly at the U.S. Embassy or Consulate which can be located in: 1) the investor’s country of birth, 2) the country of citizenship, or 3) a U.S. Consulate in a country of residence or anywhere in the world that’s willing to take the case. Due to this, the interview is critical for E2 Visa petitions. Filing a change of status to E-2 is also possible if the applicant is already in the U.S. on a valid nonimmigrant status.

Nationality Requirement

The E2 Treaty Investor Visa requires that foreign nationals must possess the nationality of the country which maintains a treaty of commerce and navigation which maintains a qualifying international agreement with the U.S., or which has been deemed qualified by legislation.

This doesn’t mean, however, that nationals from countries without an E2 investment treaty with the U.S. are no longer eligible. They can still qualify in two ways: 1) by being a citizen of the treaty country, or 2) by being married to a citizen of a treaty country.

Meanwhile, the EB-5 Visa doesn’t have a nationality requirement.

Job Creation Requirement

The EB-5 program requires the investor to create 10 full-time jobs for qualified U.S. workers, which must be done before they receive their permanent green card.

The E-2 Visa doesn’t have the same requirement. Instead, the investor must show that the business enterprise is not “marginal”. This means that the business has the present or future capacity to generate more than enough income to provide for the minimal living of the investor and their family.

Source of Funds

Both the E2 and EB-5 Investment Visas require that the investor show their investment funds were sourced from legal or lawful means. It may be sourced through employment, the sale of property, a gift, or a loan among others.

Processing Timeline

The processing time for both the E2 and the EB-5 Visa varies greatly. The process of E2 Visa is much quicker and easier. It can be obtained either through a: 1) Change of Status or 2) Visa Processing. It can take for an E2 Visa to be processed in 4
months.

Meanwhile, the process of an EB5 Visa</a > is very long and has multiple steps. After the processing of Form I-526, it requires: 1) Adjustment of Status or 2) Visa Processing. After this, the investor receives a 2-year conditional green card which they would then remove conditions through Form I-829 3 months before it expires.

The USCIS releases a monthly visa bulletin for the EB-5 Visa priority date. According to the recent October 2023 USCIS Visa Bulletin, the priority date for all countries is ‘Current’ except for China and India, which means that there is no backlog and no retrogression. The application may be filed regardless of the investor’s priority date.

Moreover, in recent years, there have been more people filing for an EB5 visa which creates backlogs and increases wait times due to the quota.

Visa Cap

There are only 10,000 EB5 Visas that are available each year and from this 10,000, 3,000 is set for investors who invest in a commercial enterprise that will create jobs in a TEA. Compared to this, the E2 Visa doesn’t have an annual limit or cap on visas issued per year.

Work Authorization

Both visas allow the investor to work in the U.S., however, there is a main difference in the extent to which they can work. Under the E2 Visa, they are only allowed to work for the E2 business. Meanwhile, under the EB-5 Visa, they are allowed to work for any company.

Taxation

Another main difference is that since EB-5 Visa holders obtain green cards, they are subject to the U.S. tax on worldwide income. Meanwhile, E2 Visa holders can avoid tax on their worldwide income by reducing the days they spend in the U.S.

Ownership of Business

The E2 Visa requires that the foreign investor owns at least 50% of the E2 business to qualify. On the other hand, EB-5 Visa investors are not required to own any specific percentage of the business.

Time Spent in the U.S.

Since the EB5 Visa confers lawful permanent residence, the investor must establish ties to the U.S. and not abandon the permanent residency. In general, a U.S permanent resident should not spend more than 6 months outside the U.S. for every trip. If there is a need to stay outside the U.S. for more than one year, it is recommended to apply for a re-entry permit before leaving to avoid abandonment of permanent resident status.

Dependent Family members

For both visas, their dependent family members such as their spouse and unmarried children under the age of 21 can accompany them to the U.S.

Under the EB5 Visa, the investor’s spouse can work under their conditional green card for any employer they desire.

As for the E2 Visa, the investor’s spouse is no longer required to show an Employment Authorization Document (EAD) after the USCIS updated its policy manual. They’re already considered employment authorized based on their E-2 derivative status.

Both visas also allow the investor’s unmarried children under the age of 21 to attend school.

Pursuing Other Opportunities

As we have said, E2 investors must work for the same company for which their temporary visa was issued. Compared to this, EB5 investors can attend school, work anywhere, or enjoy their retirement among others as long as they have their conditional green cards or they’re at least a limited partner or director of the enterprise they invested in.

Benefits of Obtaining a Green Card

As it stands, the main difference between an E-2 Visa and an EB-5 Visa is that the latter confers a green card to the qualified investor. So you might be asking, what are the benefits of obtaining an investment green card?

Here are some of the benefits once you have obtained a green card:

  • You become a permanent resident of the U.S;
  • Your dependent family members such as your spouse and unmarried children under the age of 21 can also obtain a green card;
  • You can do unlimited or multiple business in the U.S;
  • You can travel freely anywhere in the world; and
  • You have access to the quality of life and benefits of the U.S. economy.

Conclusion

While both the E2 and EB-5 Visa are considered investment visas, they still have stark differences which you must know and understand as a different visa may apply depending on your case or circumstances. Moreover, both visas have different eligibility requirements, which would affect the relevant documents and answers to the interview you would need to prepare.

If you’re still unsure which visa to apply for, Davies & Associates and its team of experienced immigration lawyers can help you determine the
perfect visa for your current goals and needs.

Eb-5 Visa Investment Level Increase

USCIS Announces Premium Processing Fee Increase for Form I-907

US Immigration Advisor

On December 27, 2023, USCIS has announced a final rule that will increase the filing fee for Form I-907, Request for Premium Processing, to adjust for inflation. The fee increase will take effect on February 26, 2024. The premium processing fee will be increased to $2,805 from $2,500.

More information: https://www.uscis.gov/newsroom/alerts/uscis-announces-inflation-adjustment-to-premium-processing-fees#:~:text=The%20adjustment%20increases%20certain%20premium,%241%2C965%2C%20and%20%242%2C500%20to%20%242%2C805.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world. 

This article has been written by Verdie J. Atienza, Esq., Senior Immigration Attorney, Head of E-2 and L-1 Visas Practice Team at Davies & Associates, New York Office.

Verdie J. Atienza is a Senior Attorney in charge of the firm’s L-1 and E-2 visa practice. He is a dual qualified lawyer in New York and in the Philippines and is qualified to practice immigration law in any state in the United States. 

 

USA Immigration

U.S. Stateside Renewal Pilot To Kick Off in Jan 2024 

US Immigration Advisor

The much-anticipated stateside renewal pilot program is set to run from January 29 to April 1, 2024.  Under the pilot, certain H-1B visa holders will be able to renew their visas within the United States, without having to leave the country for visa stamping.   

The program is limited to a total of 20,000 visa applications.  4,000 application slots will be opened up by the State Department every week, from January 29 through Feb 26.  

While the pilot is currently applicable to H-1B employees only, there is a possibility of it being expanded in the near future to other non-immigrant visa categories like the L-1. 

To qualify under the pilot for domestic visa renewal, the H-1B worker, who has an approved and unexpired H-1B petition and is seeking to renew their visa stamp must: 

  • Have been issued the visa by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023; or by Mission India with an issuance date of February 1, 2021, through September 30, 2021; 
  • Not be subject to a nonimmigrant visa issuance fee (“reciprocity fee”);  
  • Be eligible for an in-person interview waiver;  
  • Have been fingerprinted in the past in connection with a prior visa; 
  • Not have a prior visa that includes a “clearance received” annotation;  
  • Not have a visa ineligibility that would require a waiver prior to visa issuance;  
  • Be currently maintaining H-1B status in the United States;  
  • Have a period of authorized admission in H-1B status that has not expired; and 
  • Intend to re-enter the US in H-1B status after a temporary period abroad. 

 Eligible applicants will be able to apply for renewal through the State Department’s dedicated domestic visa renewal website by submitting the DS-160 and paying the requisite fee, after which applications will then be sorted to determine whether they fall within the scope of the pilot. 

Source: 2023-28160.pdf (federalregister.gov)

D&A will closely follow this development and provide updates as and when they become available. 

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

EB5 Visa for Vietnamese Investor: Direct versus Regional Center - what is the better option

Visa EB5 cho Nhà đầu tư Việt Nam 2023 – 2024: Trực tiếp so với Trung tâm vùng – lựa chọn nào tốt hơn?

US Immigration Advisor

Ngày 2/12/2023, một sự kiện toàn cầu về di cư và đầu tư được tổ chức tại Thành phố Hồ Chí Minh bởi John Hu Migration Consulting, với chủ đề nổi bật là cung cấp cập nhật về chương trình visa EB-5, thu hút doanh nghiệp và nhà đầu tư Việt Nam đang tìm kiếm cơ hội tại Hoa Kỳ.

Tại sự kiện, ông Mark Davies, nhà sáng lập của hãng luật chuyên về di trú và định cư Davies & Cộng sự, và ông Simon Thien Nguyen, Chuyên viên Đầu tư giàu kinh nghiệm của hãng, chia sẻ những hiểu biết quý báu về các tùy chọn khác nhau trong chương trình thị thực visa EB-5 dành cho nhà đầu tư Việt Nam. Các thông tin được luật sư chia sẻ nhằm giúp nhà đầu tư Việt Nam hiểu rõ hơn về các lựa chọn visa khác nhau để bắt đầu kinh doanh tại Hoa Kỳ.

Điểm chính về triển vọng Visa EB-5 cho nhà đầu tư Việt Nam trong giai đoạn 2023 – 2024:

Luật sư Davies đảm nhiệm phần thảo luận, tóm tắt về chương trình EB-5 và giải thích về các lựa chọn cho nhà đầu tư Việt Nam. Diễn giả đi sâu vào chi tiết về chương trình EB-5, mang đến cho mọi người cái nhìn rõ ràng về các con đường visa mà doanh nghiệp và nhà đầu tư có thể tham khảo.

Visa EB5 hình thức đầu tư trực tiếp (direct) so với Trung tâm Vùng (regional center): Lựa chọn nào cho nhà đầu tư Việt trong 2023 – 2024?

Luật sư Mark Davies nói về một vấn đề phổ biến mà nhà đầu tư Việt Nam thường gặp: lựa chọn giữa các chương trình visa EB-5 Trực tiếp và EB-5 Trung tâm Vùng.

Luật sư nhấn mạnh tầm quan trọng của việc giảm thiểu rủi ro khi đầu tư visa EB5, đặc biệt là khi xem xét tùy chọn Trung tâm Vùng. Luật sư nhấn mạnh ưu điểm của việc giảm rủi ro khi chọn đầu tư Visa EB5 dạng Trung Tâm Vùng, khi khách hàng nhận được sự cố vấn và hỗ trợ của nhiều bên: đại diện trung tâm vùng, chủ đầu tư, luật sư cố vấn và công ty tư vấn đầu cư định cư. Việc này sẽ giúp khách hàng tránh được rủi ro nhiều hơn hình thức EB5 trực tiếp, giảm trách nhiệm quản lý một doanh nghiệp EB-5 độc lập, nơi yêu cầu tạo ra và duy trì 10 việc làm.

Trả lời câu hỏi của người tham dự sự kiện về EB5:

Visa EB5 cho nhà đầu tư Việt Nam 2023 trực tiếp và trung tâm vùng

Tại sự kiện cũng diễn ra một phiên hỏi và đáp cùng các nhà đầu tư về việc sử dụng tài khoản escrow. Những câu trả lời của ông nhấn mạnh về tầm quan trọng của việc có một công ty luật đáng tin cậy giám sát quy trình, đảm bảo rằng quỹ của nhà đầu tư được xử lý một cách an toàn theo quy định của EB-5.

Tổng kết, Davies & Associates LLC, đại diện bởi ông Mark Davies và ông Simon Thien Nguyen, đóng vai trò quan trọng trong việc giúp mọi người hiểu rõ hơn về chương trình visa EB-5. 

Sự kiện không chỉ giới thiệu về chuyên môn của công ty trong lĩnh vực pháp lý nhập cư mà còn đối mặt với những lo ngại quan trọng của nhà đầu tư, như việc sử dụng tài khoản Escrow. Bằng cách làm rõ những khía cạnh này, Davies & Associates LLC mong muốn tiếp tục hỗ trợ doanh nghiệp và nhà đầu tư điều hướng thành công trong thế giới phức tạp của chương trình EB-5.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

EB5 Visa for Vietnamese Investor: Direct versus Regional Center - what is the better option

EB5 Visa for Vietnamese Investor 2023 – 2024: Direct versus Regional Center – what’s the better option?

US Immigration Advisor

On 12/2/2023, a special global migration and investing event was organized in Ho Chi Minh City by John Hu Migration Consulting, with one of the notable topics being to explain the ins and outs of the EB-5 visa program, attracting Vietnamese businesses and investors looking for opportunities in the United States.

During the event, Mr. Mark Davies, who is the Managing Partner at Davies & Associates LLC, and Mr. Simon Thien Nguyen, an experienced Investment Consultant, shared valuable insights about the various options within the EB-5 visa program for Vietnamese Investors. They aimed to help Vietnamese investors understand the different visa choices available for starting a business in the U.S.

Key Points about EB-5 Visa outlooks for Vietnamese in 2023 – 2024:

Mr. Davies led the discussion, providing a summary of the EB-5 program and explaining the choices for Vietnamese investors. The speaker went into the details of the EB-5 program, giving everyone a clear idea about the visa paths that businesses and investors can explore.

EB5 Direct vs. Regional Center:

A key point discussed at the event was Mr. Mark Davies talking about a common problem that investors often face: deciding between the EB-5 Direct and EB-5 Regional Center programs.

He stressed how important it is to reduce risks, especially when considering the Regional Center option. Mr. Davies pointed out the benefit of involving different parties within the Regional Center structure, offering clients more support and lessening the responsibility of managing an EB-5 business on their own. Additionally, he highlighted the significance of job creation in the Direct EB5 model, where creating and maintaining 10 jobs is a requirement.

Interactive EB5 Q&A Session:

EB5 Visa for Vietnamese Investor: Direct versus Regional Center - what is the better option

We also had an interactive session where Mr. Davies answered questions from the audience, including concerns about using Escrow accounts. His responses emphasized the importance of having a reliable law firm oversee the process, ensuring that investors’ funds are handled securely according to EB-5 regulations.

In conclusion, Davies & Associates LLC, represented by Mr. Mark Davies and Mr. Simon Thien Nguyen, really seeks to help everyone understand the EB-5 visa program through reality – proven case studies.

The event also showcased the firm’s expertise in immigration law and addressed important concerns for investors, such as the use of Escrow accounts. By providing clarity on these aspects, Davies & Associates LLC hope to continue supporting businesses and investors navigating the complex world of the EB-5 program successfully.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Immigration

US Visa Options for Entrepreneurs

US Immigration Advisor

Whether you are desiring to start a business in the United States or have established one already, you may be eligible for a non-immigrant or immigrant visa.  Fortunately, US immigration law provides multiple options in this regard. 

This article briefly touches on the popular routes available to foreign entrepreneurs seeking to live and run their business in the US. 

E-2 Treaty Investor Visa 

The E-2 visa is a great and often times, quick option for entrepreneurs seeking to establish a business in the United States or invest in an existing one.  The E-2 non-immigrant visa is available to nationals of specified countries that have a certain treaty with the US.  One must demonstrate a substantial investment in the US entity; there’s no prescribed minimum, and substantiality is generally assessed based on the proportion between the invested funds and value of the business.  Investments can be by way of cash, inventory, or intellectual property. The capital must be sufficient enough for the business’ operational success.  For example, while an investment of USD 60,000 may be substantial for a juicery, it would not work for a inventory-heavy or manufacturing business.  

An E2 visa can be renewed indefinitely as long as the business continues to operate and the investor – entrepreneur remains actively engaged in the business.  To qualify, the investor does not need to own or run a business in their country or if they do have one, the nature of the US E-2 business need not be the same as their foreign business.   

L-1 Intracompany Transferee Visa

The L-1A, a dual-intent nonimmigrant visa, is used for the transfer of qualified managerial and executive personnel from an overseas company to a related company in the United States. The key criteria are: (1) existence of a qualifying relationship between the foreign and US entity (the US entity should be a parent, subsidiary, affiliate or a branch of the foreign company); (2) the applicant should have worked in a managerial or executive capacity for the foreign employer abroad for at least a year (3) should be assuming a managerial or executive role in the US as well. 

An eligible foreign business owner desirous of expanding their business operations into the US or venturing into a new business line can apply for the L-1 visa for themselves.  The business need not be operational, an L-1 can be applied for “new office” purposes too, where the US business is a startup and has not been engaged in activities for more than a year.  Here as well, there is no prescribed minimum investment amount.  A founder and CEO of an established logistics and warehousing company in Vietnam for example, who is keen on starting and running a similar or different business or businesses in the US may be eligible for the L-1A visa option.  

EB-1C – Multinational Managers and Executives 

The EB-1C visa is a green card/immigrant visa category, available to certain multinational executives and managers who have been employed abroad for at least a year and whose employer is related to a U.S. company (by way of being a parent, subsidiary, affiliate or branch). The US EB-1C sponsor must be engaged in business for at least a year and must offer to employ the foreign applicant in a managerial or executive capacity in the United States.   

The US business does not need to be large; there’s no minimum revenue, earnings, investment or staff prescribed, even small businesses may qualify as long as the EB-1C requirements are met and the company can show the financial ability to pay for the proffered position. 

The EB-1C visa grants permanent resident status.  This category does not require the lengthy labor certification process and the wait time for obtaining a green card is significantly shorter compared to those of the other employment categories.  

EB-1C is a common route adopted by L-1A executives or managers employed in the US to transition to permanent residency.  EB-1C, however, is not limited to L-1 employees; it can be used to sponsor the green card for a multinational manager or executive who has not worked in L-1 status in the US as long as the visa requirements are met. 

EB-5 Investment (Direct) 

The EB-5 immigrant visa is reserved for foreign investors/entrepreneurs who are willing to invest capital in a new or existing business in the US, that will result in jobs for US workers.  Unlike the EB-5 regional center route, under direct EB-5, the investor invests his money directly into their own or a family member’s business which can be a new or an existing one.  The minimum amount is $800,000 in a commercial enterprise in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA.  Business options under the EB-5 direct route can include retail, services industry, franchise model, restaurants, gas stations, manufacturing and so on. 

Upon approval of the I-526 which is the first stage, the investor will receive a two conditional green card, which later leads to permanent resident status upon fulfilment of certain criteria. 

O-1 Extraordinary Ability

The O-1 visa is reserved for individuals having extraordinary ability in business, education, sciences or athletics.  It’s a good option for accomplished entrepreneurs desirous of starting a new business in the US.  One has to demonstrate extraordinary ability by a documented record showing that they have sustained national or international acclaim, are recipients of awards, have testimonials form leading experts in their industry, among other things.  Evidence is usually in the form of media coverage, publications, press coverage, testaments from experts, etc. 

Similar to the L-1 or E-2, the investor’s own start-up company can sponsor them for the O-1 visa.  Unlike the EB-5, there is no minimum investment in the company.  The O-1 visa initially granted grants the entrepreneur 3 years with available extensions. 

EB-2 (National Interest Waiver) 

Certain entrepreneurs can also avail the Employment-Based (EB-2) National Interest Waiver visa, which is an immigrant visa, leading to a green card.  There’s no US job offer or sponsor needed, the entrepreneur can self-petition.  The entrepreneur needs to demonstrate exceptional ability or that they have an advanced US degree along with demonstrating that their work has “substantial merit and national importance;” they are in a good position to achieve what’s stated in their business proposal, and that their endeavor on balance, would be beneficial to waive the job offer requirement. 

Entrepreneur applicants must be ready to present multifaceted and specific evidence along with a very well-articulated business plan.  Evidence can include educational credentials and work experience, investments, revenue growth and job creation, awards, grants, media and press coverage, testament from leading experts and industry organizations and so on. 

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Immigration attorney

Ways to get a US Green Card

US Immigration Advisor

The much-coveted green card is a license to permanently live and work in the United States.  In other words, this piece of document grants the holder the status of permanent resident in the US and a path to citizenship. 

The two most common ways to obtain a green card are through family and employment. 

In general, green card immigrant visas through family-sponsored preference categories are limited to 226,000 per fiscal year (October 1 to September 30), and employment-based immigrant visas are capped at 140,000 annually.  However, these annual limits can be exceeded if certain immigrant visas from prior fiscal year’s allocation remain unutilized. 

This article provides a brief overview of the various routes through which a green card can be obtained. 

  1. Through Family: 

Immigration through family is arguably the most common path for obtaining a green card and later, citizenship.  The marriage route is the quickset.  The law allows a US citizen or a permanent resident to sponsor a family member for permanent residency (typically done by way of an I-130 filing).   

The family-based route has two immigrant visa categories: 

Immediate Relatives – these are close relatives of US citizens, such as spouses, unmarried children under 21, or parents.  This category is not subject to a fiscal quota and unlimited number of visas are always available; thus visas are processed relatively much faster under this category. 

Family Preference – this category is reserved for other relatives of US citizens and green card holders such as siblings, unmarried children over the age of 21, married children, etc., and a limited number of immigrant visas are available each year.  Processing times in most cases often range from a couple to several years. 

Separately, there’s also a path for fiancés of US citizens – K1 or the fiancé visa – which allows the fiancé to enter the US for the purpose of marriage and later, adjustment to green card status.  

  1. Through Employment:

A green card can be obtained by working with a US employer; there are different categories, and of course, different requirements.  These categories include priority workers such as outstanding professors and researchers, people with extraordinary ability and multinational manager and executives; professionals with advanced degrees; skilled workers and special immigrants.   

The five categories of employment-based immigrant visas: 

  • EB-1: Priority Workers 
  • EB-2: Professionals with Advanced Degrees or Exceptional Ability 
  • EB-3: Skilled Workers, Professionals, and Unskilled Workers 
  • EB-4: Special Immigrants 
  • EB-5: Investors 

Generally, the US employer will sponsor the green card petition.  For example, qualified H-1B employees can obtain green cards if their employer applies for their labor certification and files the I-140 petition to sponsor them, mostly under the EB-2 or EB-3 classification.  However, these particular categories have historically had long wait times.  A quick path to green card is available to certain L-1 employees – a managerial or executive can be sponsored for a green card by their US employer under the EB-1 category; in this case the employer can directly file the I-140, bypassing the labor certification process.  The wait times to obtain a green card under this route have been significantly shorter than those of the EB-2 or EB-3.

The two employment-based immigrant visa classifications which permit self-petitioning by foreign nationals are the EB-2 – National Interest Waiver, and EB-1- Extraordinary Ability.  So, if you are a musician or an athlete who’s attained national or international fame may apply for an EB-1 visa without needing a US job offer.  Similarly, a foreign national who can demonstrate that their work is of substantial intrinsic merit and national importance for the US can apply for an EB-2 visa without a US sponsor. 

  1. Through Investment:

Foreign investors can avail he EB-5 visa – an immigrant visa which allows investors to obtain a green card by investing at least $800,000 in a commercial enterprise in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA. The investment must employ at least 10 full-time US workers or remain in a pool investment project which will directly result in job creation for US workers. Over the years, the EB-5 program has resulted in the infusion of billions of dollars into the US economy, boosting development projects and employment opportunities. There are 10,000 EB-5 visas available each fiscal year. 

  1. Through Lottery:

Another way to obtain a green card is through the Diversity Visa Program or the Green Card Lottery. Under this program, 55,000 applicants are selected each year, mainly from countries with low immigration rates such as Estonia, Norway, Japan, Ukraine, etc.  The applicant needs to have a high school education, or its equivalent, or two years of qualifying work experience. 

 5.    Through Refugee/Asylee Status:

Applying for a green card by virtue of refugee or asylum status can be complex and time-consuming and requires meeting multiple criteria.  One should have been granted refugee or asylee status in order to apply, meaning that the individual should have demonstrated the fulfilment of certain requirements of a refugee or asylum seeker and have been granted protection under US law.  Refugees are generally people outside of their country who are unable or unwilling to return home because of fear of serious harm.  Asylum status is a form of protection available to people who are refugees and are seeking admission to the US at a port of entry. 

This article is for information purposes only and does not consitute legal advice of any kind.

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

Investor Visa Application Price Increase

Guide to Taking a Loan for EB5 Visa or E2 Visa

US Immigration Advisor

There are two kinds of U.S. investor visa: (1) the non-immigrant E-2 investor visa; and (2) the immigrant EB-5 visa.

An EB5 Visa USA loan refers to a loan that’s taken by the petitioner to fund part or all their EB5 investment. The same principals generally apply for financing an E2 investor visa.

Can I Use a Loan for a U.S. Investor Visa Application?

Yes.

Loans are one of the authorized forms of financing that an investor may use. Investors commonly use loans to fund EB-5 and E-2 qualifying investments.

Loans can be secured or unsecured. Home Equity Lines of Credit (HELOC) can allow homeowners easy access to EB5 financing.

You must file documentation that evidences the bona fides of the loan with USCIS. This includes: (1) the lender’s source of funding*; and (2) the method by which money was transferred from the lender to the EB-5 investor.

* Loans sourced from a bank are exempt from this rule. Investors are not required to show where a bank procured loaned funds.

Why are Loans for EB-5 Popular?

In 2022 the RIA raised the minimum investment amount for EB5 from $500,000 to $800,000. As a result, more people wanted to borrow money to finance their EB5 investor visa application.

I. Finding an E-2 or Eb-5 Visa Lender

There are generally four sources of E2 and Eb5 qualified loans: 1) private loans; 2) institutional loans, including bank loans; 3) loans from EB5 Regional Centers; and 4) seller financing available in both E2 and EB5 Direct cases.

(1) Private Loans

Many Eb5 investors borrow money or take gifts from family. A family member lending or gifting funds for an investor visa application will have to carefully document the lawful source of those funds.

Other private lenders commonly include friends and business associates.

(2) Institutional Loans

Investors can also borrow money from a bank or financial institution by using their home or assets as Collateral. HELOCs are an especially popular source of financing.

Careful attention needs to be paid to the loan documentation. The purpose clause in a loan agreement needs to be carefully reviewed. A purpose clause that does not permit borrowing for EB5 purposes will likely result in a visa denial.

(3) Regional Center EB-5 Loans

More recently a number of Regional Centers have started to finance Eb5 transactions.

Caution needs to be taken when borrowing funds from a Regional Center. While some Regional Center loan programs do qualify for EB-5 purposes the status of some other EB5 loan programs is currently undetermined.

(4) Seller Financing

Direct EB5 investors and E-2 investors can often purchase an existing business using seller financing.

A potential issue with seller financing is whether or not the investor is “at risk”. In assessing whether or not an E-2 investor is at risk the US government applies a proportionality test. Using this proportionality test the US government evaluates the overall cost of the business against the investment made.

Caution needs to be taken to ensure that the seller financing is not secured by the subject business or the assets comprising that business. As stated in the Foreign Affairs Manual:

“Indebtedness such as mortgage debt or commercial loans secured by the assets of the enterprise cannot count toward the investment, as there is no requisite element of risk. For example, if the business in which the applicant is investing is used as collateral, funds from the resulting loan or mortgage are not at risk, even if some personal assets are also used as collateral.”

II. Secured or Unsecured EB5 Loan?

All loans are either secured by Collateral or unsecured. The investor needs to secure a secured loan with their personal property (Collateral). An unsecured loan does not require any Collateral.

Most investor visa lenders require Collateral to secure loans used for EB5 funding, unsecured loans are hard to find. If unsecured loans are available they are likely to have a much higher interest rate or other charges than a secured loan,

What is Collateral for a Loan?

“Collateral” refers to the assets used to secure a secured loan. If the borrower does not repay the loan as agreed, the lender will sell the Collateral to pay the loan.

EB-5 Visa Loan Requirements and E2 Visa Secured Loan Requirements

There are several requirements for a secured loan to be qualified as EB-5 investment funds. These requirements include:

  • The loan must be secured by the investor’s assets or property. The EB5 investor can only use personal property (Collateral) they own to secure an EB5 loan. EB5 qualifying personal property (Collateral) can include: Stocks and other securities, gold and jewelry, real estate and other assets.

  • Source of Funds for Collateral. An EB5 investor must prove how the Collateral securing an EB5 Loan was purchased. The Eb5 investor must also prove how the funds used to purchase the Collateral were lawfully earned.

  • Value of Collateral. The value of the investor’s Collateral must be equal to or more than the loan amount.

  • Perfection of Security Interest and Mortgages. The lender’s security interest in the Collateral must be perfected. In simple language that means that the mortgage or other loan used to secure real estate must be properly registered as required by law.

  • The investor must be the principal borrower of the loan and must be fully responsible for its repayment. The loan must be under the investor’s name and they must be solely liable for its repayment.

  • Investor is “At Risk”. An investor places their personal assets “at risk” as Collateral in a secured EB5 loan or E2 loan. The investor clearly meets the “at risk” requirement.

  • Purposes of Loan. For the EB5 visa program the capital investment funded by the EB5 loan must placed “at risk” and create ten jobs. Investors accomplish this by investing the loan proceeds in an EB-5 project.

Acceptable kinds of collateral for an EB-5 Visa loan

USCIS allows EB-5 investors to use any form of collateral to secure their loan as long as the loan is secured by the investor’s assets. Property holdings, gold, real estate, cash, and equipment are some examples of acceptable kinds of personal assets that investors can use as collaterals.

Eb5 projects require an investment of USD 800,000 or USD 1,050,00 and must generate at least 10 new direct and indirect jobs.

Land-Based Loan Transactions

If you are going to use a bank loan secured by land, you will need to provide copies of all relevant loan documents. This documentation includes the full purchase documentation for the land including an explanation of how funds to purchase the land were earned. Investors should also be willing to explain how payments were made on any mortgage used to acquire the property.

The loan must also comply with the laws of the country where the land is located.

Mortgages and Remortgages

Investors may also remortgage or refinance using a mortgage with a fixed or variable interest rate. A bank can quickly determine if a house or a condominium is qualified for a cash-out refinance. The loan can be quickly arranged with the proceeds reaching the investor’s account within 45 days, subject to the appraisal and the lending review processes.

E2 Visa and EB-5 Visa Unsecured Loan Advantages

An unsecured loan has a few advantages:

  • No Source of Funds. A loan from a recognized financial institution has no source of funds requirement. As an unsecured loan has no Collateral there no requirement to trace the funds used to purchase Collateral. An unsecured loan which is not from a recognized financial institution will require proof of how the lender earned the funds to make the loan.

  • Assets not at Risk. Because the loan is unsecured the investor’s assets are not immediately placed at risk in the event the loan is not re-paid.

  • Investor is “At Risk” for EB5 Purposes. USCIS traditionally took the view that investors using unsecured loans to finance EB5 investments were not “at risk” as required by EB5 law. As a result of a court case decided in October 2020 the position has changed. Unsecured loans can now be used to finance EB5 investments. As the court decision is fairly recent there is little data on how the USCIS is deciding cases where foreign investors are relying on unsecured loans.

III. EB-5 Visa Loan Repayment Terms

Loan Interest Rate

Loan interest is the amount that a lender charges to a borrower for lending the borrower the money. To calculate loan interest, multiply the interest rate by the outstanding loan balance. Market conditions and credit standards determine interest rates for EB5 Visa loans.

A wide variety of loan products on the market that meet EB5 needs. These can include 30 and 15 year fixed repayment terms using various fixed and adjustable interest rates.

At the time of writing, an investor can borrow $800,000 at a 5% interest rate by using a $1 million home as collateral. You can then apply the USD 800,000 loan proceeds towards the required EB-5 investment and the associated fees.

Other Fees

In addition to the interest cost some loans may entail other costs. These costs may include arrangement fees and pre-payment penalties.

Lending Rates from Financial Institutions

There are a lot of factors that can affect lending rates. These factors can include a client’s banking relationship and the liquidity and risk level of the asset among others. The lending rate can depend also on a bank’s own cost of capital or external factors outside its control.

While applicants may want to pay off their loan as quickly as possible to reduce the interest cost caution may be prudent.

The reason for this is USCIS may ask to see proof that the loan is still outstanding at the time the I526 is adjudicated. If the loan has been paid off USCIS may then ask for proof of how the funds used to pay off the loan were earned. This may raise complications concerning the source of funds at the time the case was originally filed.

Credit Cards

Investors from some countries where currency control measure are in place may find the use of credit cards an Eb5 funding option.

Short-Term Loans

USCIS has not stipulated any repayment requirements for short-term loans. It is however advisable to repay loans only following the approval of your I-526 petition.

If you intend to use a loan for your EB5 funding, you will need to produce documents confirming the lawful source of the lender’s funds and the lawful source of the assets used as collateral for the loan.

Long-Term Loans

Just like in short-term loans, the USCIS has not issued requirements for repaying long-term loans. There’s no indication that longer-term loans will cause your investment to lose its status as an “at-risk” investment. The EB-5 investor program requires investors to place their investment “at risk” for a period of two years. law Capital can neither be managed or governed by redemption agreements insuring loss nor by contractual promises to repay funds. For capital to be “at risk”, there must be a chance that it will be lost.

IV. Loan Documentation in Investor Visa Cases

A loan taken to fund an E2 or EB5 investor visa case will have certain documentation. The US Government, USCIS and the US State Department will all want to see:

– The Loan Agreement,

– A Promissory Note (sometimes combined with the Loan Agreement into a single document)

– A Security Agreement which secures the loan with the Collateral (for secured loans only).

An immigration lawyer should carefully review the loan documentation to ensure that all of the terms and conditions are consistent with the EB5 program.

V. How to Negotiate Eb5 Financing: Key Terms to Watch for in an Eb5 Loan

Eb5 investors would be well advised to retain an experienced lending lawyer to review loan documentation. Key issues to look at in the loan documents include but are not limited to:

  • Whether or not there is an early repayment penalty.

  • Purpose clause. Make sure that the loan agreement has a purpose clause that includes EB5 as a permissible use of the funds. A clause that states funds can be used “for any lawful purpose” is proper.

  • The amount and duration of the loan, and the procedure for disbursement.

  • How interest will be paid. Monthly, quarterly, or annual terms of the principal and accrued interest.

  • Full fees and costs, including any origination points or other fees.

  • Check that is it lawful to borrow money secured by local property and remit the proceeds of that loan to the United States for investor visa purposes.

VI. Special Considerations for Bangladeshi and Indian Eb5 Investors

  • Investors resident in India or investors using funds remitted from India will need to comply with the regulations promulgated but the Reserve Bank of Indian (“RBI”). Most investors accomplish this through the Limited Remittance Scheme (“LRS”).

  • It is improper for an investor resident in India to incur debt outside of India or to borrow money in India with the intention of remitting those funds outside of India.

  • Here at Davies & Associates, our pool of expert immigration attorneys can help you ensure that you comply with EB-5 Visa loan requirements and that you have the best chance of being granted an EB-5 Visa.

E2 Visa Study cases

U.S. State Department Issues Near Record Level Non-Immigrant Visas

US Immigration Advisor

On November 28, 2023, the U.S. State Department shared a press release highlighting the agency’s operations and the significant numbers of different types of visas issued in the last fiscal year. 

From October 2022 through September 2023, the State Department issued a near record level of non-immigrant visas – more than 10 million globally – 8 million visitor visas for business and tourism and more than 600,000 F-1 student visas (embassy and consulates in India issued an all-time record of more than 140,000 student visas).  590,000 visas were issued to high-skilled workers and executives to work in some critical fields, ranging from emerging technology to healthcare, and nearly 365,000 to airline and shipping crew members.

The State Department attributes these achievements to innovative solutions, such as expanding the interview provision that allows certain visa applicants to renew their visas without the need for an interview appointment at the consulate or embassy.    

The interview waiver flexibility is set to expire on December 31, 2023.   There is no announcement as yet from the administration regarding its continuity. 

Visa Operations Bring Record Achievements Worldwide – United States Department of State 

We at D&A are monitoring the situation and will provide updates as and when available. 

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.