Client Q & A on Eb-2 Visa

Options for Workers After Loss of Employment in the US

A non-immigrant worker in the US could working in L-1, E-1, E-2, E-3, H-1B, H-1B1, O-1, or TN status.  When such worker is laid off or they resign, they do no necessarily need to leave the United States within 60 days, which is often wrongly assumed; there are options they can explore.

Loss of non-immigrant visa employment either voluntarily or involuntarily results in the loss of the NIV status of the foreign worker.  A grace period of up to 60 days following termination is generally available to remain in the country.  However, if one of the following actions as applicable, is taken within the 60-day period, the foreign worker (and dependents) can remain in the US in an authorized stay beyond 60 days:

  • File an application for a change of nonimmigrant status;
  • File an application for adjustment of status;
  • File an application for a “compelling circumstances” employment authorization document; or
  • Be the beneficiary of a nonfrivolous petition to change employer.

If the individual fails to take any of the above actions, they and their dependents may then need to depart the country within 60 days, or when their authorized validity period ends, whichever is shorter.

The 60-day grace-period is a discretionary regulatory provision and starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.

D&A attorneys have extensive experience with non-immigrant visas and can help you navigate options in what can be a nuanced and often, complex process following employment termination.  Please feel free to contact us if you require assistance in this regard.


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.


Đơn xin visa L1A được cấp cho giám đốc công ty xuất khẩu thiết bị âm thanh từ Việt Nam

Đơn xin thị thực L1A cho văn phòng mới tại Mỹ được chấp thuận cho một CEO từ Việt Nam

Đơn xin thị thực L1A văn phòng mới của một giám đốc điều hành từ Việt Nam được Davies & Cộng sự hỗ trợ nhận visa thành công. Công ty của đương đơn tại Mỹ đã được thành lập vào năm 2023 và sẽ hoạt động dưới hình thức một nhà nhập khẩu và xuất khẩu thiết bị âm thanh.

Visa L1A cho văn phòng mới của một giám đốc điều hành từ Việt Nam

Công ty được xem là “văn phòng mới” cho mục đích của visa L-1 vì doanh nghiệp này tại Mỹ chưa có nhiều hoạt động kinh doanh thực tế hơn một năm.

Đương đơn của thị thực L-1A, người sẽ đứng đầu công ty mới này cũng đã được cấp một thời gian một năm để thiết lập doanh nghiệp tại Mỹ và xây dựng một đội ngũ sẽ hỗ trợ ông trong vai trò mới.

Liên Hệ Với Davies & Cộng sự để hỗ trợ bạn thực hiện hồ sơ xin visa L1:

Nếu bạn có bất kỳ câu hỏi nào về quá trình xin visa L-1A hoặc cần hỗ trợ trong việc nộp đơn, đừng ngần ngại liên hệ với đội ngũ luật sư di trú định cư Hoa Kỳ của chúng tôi. Chúng tôi luôn sẵn sàng giúp bạn đạt được mục tiêu di trú của mình.

Xem thêm các thông tin hữu ích các đương đơn Visa L1 cần biết:


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


Luat su di tru Mark Davies Su Kien EB5 Visa May 2024 2

Luật sư di trú Mark Davie chia sẻ tại tọa đàm tại sự kiện “We Realize Your American Dream” USIMI Group

Ngày 25/04/2024, sự kiện toàn cầu về di cư và đầu tư đã diễn ra tại Thành phố Hồ Chí Minh, do USIMI GROUP tổ chức. 

Sự kiện này tập trung vào việc cung cấp cập nhật về chương trình visa EB-5, thu hút sự quan tâm của doanh nghiệp và nhà đầu tư Việt Nam đang tìm kiếm cơ hội tại Hoa Kỳ.

Luật sư Mark Davies, nhà sáng lập của hãng luật chuyên về di trú và định cư Davies & Cộng sự vinh dự là khách mời tọa đàm của sự kiện. 

Ông Davies đã chia sẻ những thông tin quý báu về chương trình EB-5, đặc biệt là tập trung vào cách người đầu tư Việt Nam lựa chọn con đường EB5 trung tâm vùng hoặc EB5 trực tiếp, và cách thức dùng dòng tiền đúng đắn cho visa EB5. 

Link to image Luat su di tru Mark Davies Su Kien EB5 Visa May 2024 1.jpg

ALT tag: Luat su di tru Mark Davies Su Kien EB5 Visa May 2024 1

Image Caption:  Luật sư di trú Mark Davies chia sẻ cách thức dùng dòng tiền đúng đắn cho visa EB5. Ảnh: USIMI Group.

Trong bối cảnh của sự kiện, các nhà đầu tư được cung cấp thêm thông tin mới về tình hình EB-5 cho nhà đầu tư Việt Nam:

  • Trong quý đầu tiên của năm tài chính 2024, những nhà đầu tư từ Trung Quốc, Việt Nam và Ấn Độ tiếp tục là những đại diện lớn nhất trong số nhà đầu tư EB-5 trên toàn cầu. Hơn 46% số thị thực EB-5 được cấp trong năm tài chính 2024 đến từ Việt Nam.
  • Từ tháng 10 đến tháng 12 năm 2023, tổng cộng 1.127 thị thực EB-5 đã được cấp cho nhà đầu tư Việt Nam, chiếm 47% số lượng cấp thị thực EB-5 trên toàn thế giới trong Quý 1 năm tài khóa 2024. Đây là mức tăng đáng chú ý 1.024% so với năm trước.
  • Mặc dù đã đạt đến giới hạn EB-5 cho mỗi quốc gia vào năm tài chính 2024, người đầu tư Việt vẫn tiếp tục nhận được thị thực EB-5 trong tháng 11 và tháng 12.

Sự kiện đã cung cấp cho nhà đầu tư Việt Nam cái nhìn rõ ràng hơn về các lựa chọn visa EB-5 và giúp họ hiểu rõ hơn về cơ hội kinh doanh tại Hoa Kỳ.

Tại sao Davies & Associates LLC nên là đối tác pháp lý visa EB5 của bạn:

Thành công của chúng tôi đến từ kinh nghiệm và cách làm việc nổi bật của chúng tôi khi đề cử một đội ngũ luật sư di trú Mỹ nhiều kinh nghiệm cho mỗi khách hàng.

Mỗi khách hàng của Davies and Associates được một đội ngũ luật sư hỗ trợ ở các mảng chuyên biệt để đảm bảo chất lượng hồ sơ và giảm thiểu rủi ro cho khách hàng. Mỗi khách hàng EB5 của chúng tôi thường được một đội ngũ tư vấn, bao gồm:

  • Một luật sư địa phương đảm bảo các vấn đề về hệ thống pháp luật tiền tệ và các thông lệ, thực tiễn tại các quốc gia mà nguồn vốn được sử dụng
  • Một chuyên gia bất động sản hoặc luật sư tài chính hỗ trợ thẩm định dự án
  • Một chuyên gia, luật sư về Chứng Minh Tài Chính
  • Một luật sư EB5 cấp cao chịu trách nhiệm giám sát, đảm bảo tiến độ thực hiện của việc chuẩn bị và nộp hồ sơ EB5 cho từng khách hàng.


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


US Visa application - Immigration lawyer

E2 Visa Business Plan: Your Blueprint for Immigration Success

E2 Visa Business Plan Defined

An E2 Treaty Investor Visa is a nonimmigrant visa which allows a foreign investor who is a national of an E2 treaty country to make a substantial investment in a new or existing U.S. enterprise and go to the U.S. to direct and develop this business.

An E2 Business Plan is a document that supports your E-2 Treaty Visa application process. It is one of the has many requirements related to the E2 Treaty Investor and the E2 enterprise, and it is also used to show proof of compliance with visa eligibility.

After submission of your application and business plan to the U.S. Embassy or Consulate, you will be invited to attend an interview. During the interview, you will then be asked about any information you have provided about yourself and the business you plan to establish.

The consular officer will scrutinize your business plan to the extent of how it will derive economic benefit to the U.S., so you have to be prepared to explain your plans and projections to prove that your E-2 enterprise will be more than marginal.

Importance of an E2 Business Plan

One of the crucial parts of your E-2 Visa process is making your business plan. If it’s poorly written, it could further delay your visa application process as the adjudicator would request more information. Worse, a poorly written business plan will result in a denied application.

Heed caution, however, as using a template might be risky. It’s important to note that the E2 business plan must explain your plans to contribute to the U.S. market and economy through your business.

The purpose of business plans is not really to attract business partners or investors but to convince adjudicators who will review your visa application to approve your visa and your business venture.

An E2 Visa business plan has virtually the may have the same content as that of a standard business plan, but it also has be to tailored to meet the specific E-2 visa requirements. You would need to include your investment funds, the source of your capital, and your operating strategies to establish and direct the enterprise. Further, it would include background information about you, an executive summary, and other business details.

Contents of an E2 Business Plan

It’s common for investors to be unsure of where to begin writing their business plan. There’s no hard and fast rule in creating business plans, and even if you already know what to write, you may still hit some blunders along the way.

There’s a high chance you might use a template if you’re unsure of what to write. However, especially for an E2 business plan, a template will likely leave out vital and necessary information that you would need for your visa application process.

The adjudicator will use the information and business plan you have submitted to decide whether you are qualified for the E2 Visa, so leaving out necessary information or failing to detail important information will likely result in a denial.

Your immigration business plan should include your business objectives, goals and forecast. It should show in detail how you will utilize your investment and how it’s sufficient to make the business operational to meet your goals. The business plan should also provide financial projections on how the business will achieve profitability and economic benefits that will contribute to the U.S.

The contents of your business plan will depend on the nature of your business, the investment amount, and the marketing strategies you’ll adopt to make the business thrive. We always recommend working with professional business plan writers who specialize in immigration-related business plans.

In general, your business plan should cover information regarding:

The company

You should include information regarding the company which is the focus of your investment. It should show whether it’s a new or existing business, its niche, its services or products, its projected economic benefits, and its business or operational strategies. You should prove that the company or enterprise is bona fide and that it will be able to employ qualified U.S. workers.

The investment

Aside from information about the company, you should also be able to detail more about your investment, whether it’s substantial and its lawful source. Your investment must also meet the requirements of the proportionality test

The applicant

Finally, you should also be able to include information about yourself as the investor, whether you can direct and develop the business. Detail as much as you can about your abilities and capabilities to develop and direct the business as well as your credibility so you can sufficiently convince the adjudicator.

Moreover, you have to include your intention to leave the U.S. upon the expiration of your visa as well as your intent to reside in the U.S. for the duration of your visa.

Elements of an E-2 Business Plan

In making your E2 Visa business plan, it should at least include the following:

  • A business summary and description introducing the company briefly, its products and/or its services;
  • A general overview of why you and your business are qualified for an E2 Visa;
  • A detailed description of your intended purpose of developing and directing the business, which includes details that prove you’re entering the U.S. to run the business, that you own 50% of the business, and that you will be responsible for its day-to-day operations;
  • A target market analysis and industry analysis which includes information about business conditions, business competitors, budget and personnel requirements, a description of your diverse client base, and a brief explanation of why the business will succeed in its market;
  • A comprehensive marketing strategy for how the business will gain recognition from its target market, and will engage with the market;
  • A detailed hiring plan which includes a description of each position you intend to hire, how many employees you plan to hire, and information on how your business will create new jobs for qualified U.S. workers for the next 5 years of its operations;
  • A financial strategy includes financial projections, a balance sheet, a cash flow statement, a profit and loss statement, and an explanation for the figures and assumptions in these statements.
  • Information that proves you’re in control of your investment funds, including evidence of the lawful source and substantiality of these funds with a clear paper trail;
  • An operational strategy detailing your venture’s organization and management, a description of your skills and experience, and how these ensure your venture’s success and viability.

E-2 Visa Business Plan Reviewers

The consular officers from your home country’s U.S. Embassy or Consulate, and the United States Citizenship and Immigration Services are the ones who will read the comprehensive immigration business plans. There will be limited communication between you and the officer, so you have to include all necessary information in your business plan.

Issues in Writing an E2 Visa Business Plan

There might be several issues or problems you might come across while writing your business plan. You might ask, along the way, how you can prove that your investment is substantial. While there’s a definitive number on what’s considered a minimum investment, the investment is considered substantial depending on the nature of the business. The investment must be substantial in relation to the costs of setting up your enterprise.

Moreover, on the question if you’d need to indicate a commercial space, take note that a physical space or a commercial lease is not required in an E2 business plan. However, it’s still recommended that you obtain a lease for an office space because most officers still expect to see whether the E2 enterprise has an office and it also contributes in proving that the E2 enterprise is real and operating.

On the question of whether you need to spend money before your visa application is approved, it is an E2 Visa requirement that your investment funds are “at risk” so it’s given that you need to spend the capital before completing your application. However, it is possible to irrevocably commit the funds to your start up E2 enterprise without actually spending them at the time of the filing of the application. Our team can definitely guide you and help you in meeting this requirement and minimizing the risk of losing your investment.

Conclusion

A comprehensive business plan is an essential E-2 Visa requirement. To show that you are eligible for the visa classification you have to submit a business plan; E2 Visa, after all, is about investing substantial capital in a U.S. business.

You should take your time writing your business plan. Avoid using templates or sample business plans where you’ll just input information. If you’re unsure on what to write and where to start, you can ask help from immigration professionals, especially from those who have experience on handling E2 Visa applications.

The immigration attorneys at Davies & Associates can help you prepare for your visa application process, and increase the chances of you getting approved with an E2 Visa with their skills and experience.

FAQs

Is there a minimum investment needed for an E2 Visa?

The investment capital is one of the most important components of your visa application and your E-2 Work Visa cost. While there is no definitive minimum amount of investment for an E2 Visa, the requirements are clear that the investment must be substantial. Substantial is measured depending on the nature of the business, its industry, and other relevant factors. It must be substantial enough related to the costs associated with the business.

How does a business plan comply with E2 Visa requirements?

Your business plan should show how your capital investment is going to be utilized together with financial, personnel, operational and marketing strategies.

Is the E2 Visa business plan the same as a standard business plan?

While a standard business plan and an E2 business plan are virtually the same, your E2 business plan must include comprehensive and extensive information about you, the background of your investment, and how beneficial your new venture would be for the U.S.


E-2 Visa approved for a Singaporean national during COVID-19

Transferring your E-2 Visa to another Company: Process, Requirements, and Tips

An E2 Treaty Visa is a nonimmigrant visa that allows nationals from E2 treaty countries to operate or work for a business within the United States.  An E-2 treaty country is defined as a country that has a signed treaty with the United States. A list of E-2 treaty countries is available here. 

To qualify for the E2 visa an investor needs to make a substantial investment in a U.S. enterprise or business.  A substantial investment for an E2 Visa can be made in your own business, invest in a franchise, or through the purchase an existing business.  In addition to an E-2 investor visa, an E-2 specialist worker visa is also available to persons holding the same nationality as the business owner.

The United States understands that sometimes things change.  Sometimes you may need to change your E-2 business or make substantial changes to your E-2 business.

E-2 Visa Transfer to Another Company and Business Changes

It is possible to change your business while on an E2 visa or “move” to a completely new E-2 business.

Changing to a completely new E-2 business requires you to file a new I-129 for with United States Citizenship and Immigration Services (“USCIS”).

What where there are substantial changes to your exiting E2 business?

Your immigration lawyer will need to decide whether the changes to your E-2 business are “substantive” or not.  If the lawyer feels this decision is unclear or “grey” they may ask United States Citizenship and Immigration Services (USCIS) to determine if the changes to your E-2 business are “substantial” or not.

If the changes are not “substantial” then you can continue working on your current E-2 Visa.

USCIS must approve any “substantive change” to the E-2 business.  A “substantive change” may include a merger, acquisition, or the closure of a business line or location.  If there is a “substantive change” to your E2 business, you have to file a new Form I-129 for both yourself and other effected employees . The filing must also include any evidence that shows you still qualify for an E-2 status.

Transferring from Another Visa Type to an E-2 Visa

There may be a variety of reasons why you would opt to transfer from another visa type to E-2 visa status. The E-2 Treaty Investor Visa does have its advantages. Commonly qualified clients transfer from an L-1A visa to an E-2 visa.  Unlike with an L-1 visa or and H1B visa, you are not required to have a certain level of education or an employer sponsorship to obtain the visa. Moreover, the E-2 Visa can be extended indefinitely as long as you still meet the requirements.

E-2 Visa Transfer Process

Any substantial change, whether it be a change in the employer’s basic characteristics or an employee’s previously approved relationship with the U.S. business necessitates the filing of a new I-129 form. A new Form I-129 and E supplement must be filed with the USCIS together with a request for an extension of stay. Moreover, the petition must show that the new employer meets the requirements of an E2 Visa.

There are times that you may also opt for consular processing at the U.S. Embassy or Consulate in your home country to get the transfer done even if you’re already in the United States. If you go with this option, there are two main benefits you may receive: 1) Your E2 Visa might be granted for a longer period*, and 2) Your E2 Visa will not expire once you leave the country but will be renewed when you re-enter the U.S.

* All E-2 visas are subject to the limitations in the reciprocity table.

However, there are times that people will prefer not to leave the U.S. or in a rush to transfer, in which, filing with the USCIS may be more convenient.

E2 Visa Transfer to E2 company’s Parent or Subsidiary

If you are in the US on an E2 employee visa you can work for your employer’s parent company or subsidiary without any change to your E2 visa.  To make this change you need to meet a few conditions:

  • A qualified corporate relationship must exist between your employers.
  • Your new employment requires executive, supervisory, or essential skills.
  • The terms and conditions of the employment which is the basis of the E2 status didn’t change.

E-2 Visa to H-1B Visa Status

While the E2 visa is a much more flexible visa of potentially infinite validity there may be times where business changes render an E2 visa ineligible for E2 Visa status.  For example, if the E-2 business is acquired by a U.S. entity then all E2 visa validity will likely end.  In these circumstances transferring to an H1B visa or L1 visa may be a possibility.

There is no official process to automatically transfer from an E2 Visa status to a H1B. You would need to apply for an entirely new H-1B Visa.   You need to make sure that you meet all of the qualification requirements for H1B:

  • You have at least a bachelor’s degree in the field where you’ll work. If you have relevant work experience, it can be used as a substitute. A year of study in the university is equal to 3 years of work experience, generally.
  • Your employment must be considered a specialty occupation according to the standards of USCIS.

Once you qualify, you must have an employer to sponsor you because and file a Form I-129 petition on your behalf. A potential H1-B employer will also need to secure a Labor Condition Application for you.

After and H1-B petition is filed, you will need to undergo a lottery for random selection due to the H-1B’s popularity. If you possess a master’s degree, you have a better chance of getting selected. Moreover, if you are working for a non-profit organization, an institute of higher education, or a government research centre, you can be considered exempt from the H-1B visa limit.

E2 Visa Transfer to an Unrelated Employer or Business

Any substantial change that affects the treaty investor or employee’s previously approved relationship with the E2 business must be approved by the USCIS.

An E2 employee cannot work for a business that is not related to their original E-2 employer and remain in an E2 status without proper government approval. If you want to transfer to a completely unrelated company, the new company must apply for the E2 visa for you.

The same goes for the investor who wants to change the activity or nature of their company.

If you want to make substantial changes, Davies & Associates has immigration attornies who can give you advice regarding your transfer and make sure that you still retain your current E-2 nonimmigrant status.

Adjusting Status to Green Card

No non-immigrant visa, including the E-2 visa, provides a direct road towards a lawful permanent residency. You will need to apply for an immigrant visa.  Immigrant visas include:

  • EB-5 Visa – Since one of the parts of an E-2 Visa Cost is the investment, then you might want to consider the EB-5 Visa. This visa allows you to obtain a green card when you make a minimum investment depending on the area where you’ll make your investment.
  • EB-2 and EB-2 NIW – This visa requires an employer sponsorship and a PERM Labor Certification obtained by the employer on your behalf. If you’re planning to apply, however, with a National Interest Waiver (NIW) you may bypass such requirements.
  • EB1-C  The EB1-c visa is for international managers and executives.
  • EB-3 – This visa also requires an employer sponsorship and a PERM Labor Certification for you to be qualified. It’s available for skilled workers, professionals, and other workers possessing the necessary qualifications.

Dual Intent in E2 Visa

Dual intent is an important doctrine in US immigration law.  For certain visas the visa applicant is permitted to hold a long-term intent to remain in the United States, these are the visas of “dual intent”. 

It is unlawful to enter the United States with the intention of remaining permanently in the United States using a non-immigrant visa unless it is a visa of “dual intent”.

The E2 visa is unique in that it is neither a visa of “dual intent”, neither is the E2 visa not a visa of dual intent. 

All E-2 visa applications are supported by a statement that the applicant intends to depart the United States when the visa comes to an end.  As an E2 visa can be renewed as long as the E2 business exists, this time period is never clear.

If you’re considering checking the processing time of an E2 visa for your application process, you may also check our article here.

Required Documents for E2 Transfer

The E2 Visa process necessarily includes the submission of the proper and relevant documents, the same is true where there is a substantial change to the US E-2 business. Amongst other documents you must prepare the following:

  • Original and copy of your passport;
  • Original and copy of your Alien Registration Card;
  • A passport-sized photo;
  • A copy of your contract with your employer;
  • A copy of the E-2 business’s license;
  • Employment certificate;
  • Criminal background check;
  • Proof of your income from the previous E-2 employer; and

E2 Visa Restrictions for E-2 Employees

An E-2 employee must have the same nationality as the E2 business.  For this purpose the E-2 business is deemed to have the nationality of its owners.  When the E-2 business is jointly owned by persons of differencing nationality the E-2 business is deemed to have two nationalities.

Where an owner of an E-2 business is a US dual national the business is deemed to be a US business for E-2 visa purposes.

A special rule applies where the owner of the US is also an E-2 visa holder.  Under these circumstances both the employee and employer must be present in the United States.


US Visa Application

Understanding the EB-5 Reform and Integrity Act of 2022

A Dictionary of Terms

EB-5 Reform and Integrity Act of 2022

The Eb-5 Reform and Integrity Act of 2022 (“RIA”) was signed into law last March 15, 2022. It repealed former laws and added new authorizing provisions to substantially reform the Regional Center Program effectively on May 14, 2022. The reformed program is authorized until September 30, 2027.

The new law requires the United States Citizenship and Immigration Services (USCIS) to establish a special fund, called the EB-5 Integrity Fund.  The EB5 Integrity Fund which is primarily used for the administration of the Regional Center Program.

The RIA also provided major changes that affect regional centers, developers, promoters, and existing and future investors.

EB-5 Integrity Fund

The RIA establishes a special fund called the EB-5 Integrity Fund which must be used by the Department of Homeland Security (DHS) for the following purposes:

  • Detect and investigate fraud or other crimes;
  • Determine if the regional centers, new commercial enterprises, job-creating entities or alien investors comply with U.S. immigration laws;
  • Conduct site visits and audits; and
  • For other purposes as the DHS deems as necessary.

Integrity Fund Fee

Annual

The law requires that the Integrity Fund be financed through a collection of annual fees paid from designated regional centers. The first Integrity Fund fee was due to be paid by October 1, 2022 penalties for unpaid fees being imposed starting October 31, 2022.

The law sets a standard annual fee of $20,000 USD for each designated regional center. However, for regional centers with “20 or fewer total investors in its New Commercial Enterprises”, the annual fee is reduced to $10,000 USD.

Late

The law also requires the DHS to impose a penalty fee on a regional center that fails to pay the annual Integrity Fund fee within 30 days after the date it’s due. The USCIS is required to terminate the designation of any regional center failing to pay the fee within 90 days after the date on which it is due.

Please take note that termination is not automatic and the regional center can still prove it has paid the proper amount by the due date.

Payment Process

Each regional center must pay the corresponding annual fee to the online form hosted at Pay.gov with either: (1) a valid credit or debit card; or (2) by authorizing an ACH Debit transaction where the regional center provides their U.S. bank routing and the checking account numbers. Payment must be made by the authorized individual on behalf of the regional center.

Check this notice for more information about the Integrity Fund Fee.

Adjusting to Inflation

The RIA also adjusted the minimum investment required for the EB5 Visa Program to keep up with inflation. The new minimum investment for an EB-5 Visa is $1,050,000 USD, which is lowered to $800,000 USD if the investment is in a targeted employment area (TEA) or high unemployment area (HUA).

Since the primary goal of the EB-5 program is job creation and stimulating economic growth, investors must still prove that their investment has created at least 10 full-time jobs for qualified U.S. citizens whether directly or indirectly.

Prioritizing Targeted Employment Areas (“TEA”)

The RIA prioritizes projects in TEAs to encourage investment in areas with high unemployment rates to promote economic growth, stimulate job creation, and revive struggling communities.

The RIA also renewed the Regional Center Program, extending it until September 2027 to give stability and continuity to investors and developers involved with regional centers.

Assuring Faster and Easier Process

In addition to strengthening the program, the new law has made the EB-5 application process more open and efficient.

The RIA allows concurrent visa filing.  Concurrent Filing enables investors to apply for adjustment to U.S. Permanent Resident status (also known as a “Green Card”) while also their EB-5 based application is pending. This enables investors in a qualified EB5 project to obtain their Employment Authorization Document (EAD) and travel permit simultaneously with the filing of their form I526E.

The RIA also includes stronger measures to protect investors in the EB5 program. It is now mandatory to have background checks for regional center leaders, project developers, and other associated individuals. It also gives the DHS the power to ensure compliance with the law, conduct inspections, and prevent illegal activity.

Summary of the following key items:

“Grandfathering.”

Grandfathering of the prior Regional Center (RC) enables pre-RIA EB5 investors  to preserve their eligibility as of the time they filed their applications.

Investment Amounts and Arrangements

For new filings, the minimum investment in a TEA or HUA is increased to $800,000 USD. A targeted employment area (TEA) is an area that’s either rural or high unemployment areas. Current USCIS policy  is to adjudicate whether the relevant area is a TEA or HUA when adjudicating the project application for regional center filings or for standalone investments.

If the investment is outside the TEA or HUA, the minimum investment is $1,050,000 USD. The investment amount will be adjusted accordingly with the inflation every 5 years starting January 1, 2027.

The $800,000 USD investment can also be used in infrastructure projects where the government entity contracts to develop public works with EB-5 financing, like a private municipal bond deal.

Certain USCIS interpretations under the previous law were included in the RIA. The purchase of publicly available bonds, whether municipal or for-profit, no longer qualifies so funds  cannot be redeployed to bond programs.

Reserved Visas

Certain visas are now “reserved” each fiscal year:

  • 20% for rural area investments
  • 10% for high unemployment area investments; and
  • 2% for infrastructure projects investments

Any unused visas from the reserved categories above will carry over to the following year.


E-2 Visa approved for a Singaporean national during COVID-19

E2 Employee Visa: The Key to Working in the United States

E2 Employee Visa defined

An E2 Employee Visa is a visa classification that allows a national of an E2 treaty country to work for an E2 business. The business can be new or existing where the treaty investor of the same nationality has invested a substantial amount. If the treaty investor has been proven eligible, certain employees may also be eligible.

Treaty investors, either real or corporate, must possess the following requirements to qualify:

  • Be a national of an E2 treaty country. Treaty countries are those that entered into a treaty of commerce and navigation with the U.S.
  • Made a substantial investment in a genuine U.S. enterprise.
  • Must show that they own or control at least 50% of the U.S. enterprise
  • Must invest in an enterprise that’s more than marginal

Privileges that an E2 Employee Visa grants

The E2 Employee Visa allows the holder to work in the treaty investor’s business in either an executive or supervisory role or any other role that’s essential to the operations of the business, which means that they possess specialized skills needed by the E-2 company. The holder of an E2 employee visa must only work for the treaty investor business and not for any other U.S. employer without seeking further permission.

The holder can be accompanied by their spouse or unmarried children under the age of 21 in the U.S. Their spouse can also legally work in the U.S., while their children can attend school.

Moreover, the E2 Employee Visa holder can freely travel in and out of the U.S. with their dependent family members without restrictions, provided their visa remains valid.

Types of Employees under the E-Visas

Executives and/or Supervisors

For this type of employee, it is a must that the applicant possesses qualifying executive and supervisory experience. You should be able to demonstrate their experience, although it is not a requirement that you have previous employment with the principal treaty investor for a specific period.

You should also be in a senior position and manage the whole business or a key part of the business. Moreover, your role’s executive or supervisory nature must be the principal and primary function and not just merely incidental. If the role entails key supervisory responsibility for a key part of the business’s operations and only routinely involves substantive staff work, then you can apply for this visa type.

During the application process, you should submit documents such as a job description, resume, and other supporting documents.

Specialized or Essentially Skilled Workers

In this type, you should be able to demonstrate that you’re an essential employee possessing a specialized knowledge of the business which can be hardly found in the U.S. or that you’re necessary for the efficient operation of the treaty investor business. There are cases, however, that ordinarily skilled workers can qualify as essential employees for start-up or training purposes.

Benefits of an E2 Employee Visa

There may be reasons why an E2 Employee Visa may be a better fit for you than other nonimmigrant work visas. The E2 Visa can be extended or renewed indefinitely as long as the treaty country nationality meets the requirements. Moreover, there is no limit on the number of E2 visas issued per year. If you’re accompanied by your spouse, they can work in the U.S., and you’re not required to work abroad for a period of time before qualifying.

However, the E2 Visa is not a direct road towards a green card. As an E2 Visa holder, you must have a nonimmigrant intent and as such, you have the intent to depart once your visa expires.

If you think that the E2 Employee Visa is not the right one for you, you can also visit here for the other employment-based visas.

Requirements for an E2 Employee Visa

Before applying for an E2 Employee Visa, the treaty investor business must be first registered with the E-Visa Unit. After all the requirements are met by the business, as the E2 employee, you must also satisfy the following:

  • You have the same nationality as the treaty investor or the treaty investor’s business
  • You must work in an executive or supervisory position or possess essential skills to the operations of the business; and
  • You intend to leave the U.S. once your visa expires.

Requirements for the E2 Treaty Investor

If you’re a treaty investor, you must satisfy certain requirements to be able to bring employees to the U.S. under an E2 Visa USA.

You have to be a national of an E2 Treaty Country

To qualify for an E2 Treaty Investor Visa, you have to be first national of a treaty country, which is a country that has a treaty of commerce and navigation or that has a qualifying international agreement with the U.S. or which has been deemed qualified by law.

You can also check through the U.S. Department of State website to check which countries are qualified for an E2 Visa.

However, for companies, the process can be a little more complex. To determine its nationality, you have to look into the ownership structure. At least 50% of the company must be owned by treaty country nationals. These owners must either maintain a nonimmigrant treaty investor status or if they’re not in the U.S., they are seeking admission to the country as nonimmigrant treaty investors.

You have to show that you intend to or will direct and develop the enterprise.

You must show that you’ll personally develop and direct the enterprise in the U.S. if the employee plans on applying for the E2 Employee Visa as an individual employee.

In the case of a company, the parent company itself and not the individual owners must show that it will develop and direct the enterprise.

You have to show that you made a substantial investment in the U.S.

You must show that you have invested or are in the process of investing a substantial amount of capital in a real and operating commercial enterprise. Aside from making sure that the funds came from legal sources, the investment must also be “at risk” and must be more than a marginal investment. Substantial may depend on the E2 business, but the investment must be sufficient to ensure the treaty investor’s financial commitment to the success of the enterprise. Meanwhile, to not be marginal means that it’s intended to provide more than a living solely for the investor and his family.

Since this is a quick rundown, you may also check the full comprehensive requirements for E2 Visa.

The application process for an E2 Employee Visa

The requirements for filing for an E2 Employee Visa are the same as that of an E2 Treaty Investor Visa, albeit with different supporting documents.

Before being granted an E2 Employee Visa, the treaty investor business must be first successfully registered with the E-Visa Unit through Form DS-160 and by submitting comprehensive supporting documents. Meanwhile, the E2 Employee Visa applicant must submit a Form DS-156E.

If you’re applying for employment in a previously qualified E2 business, then you’ll need to submit both Form DS-160 and Form DS-156E.

You are required to attend an interview and submit all the relevant supporting documents which include:

  • A copy of the confirmation page of Form DS-160
  • A copy of the appointment confirmation page, if necessary
  • A filled-up Form DS-156E
  • A copy of your passport valid for at least 6 months beyond your stay in the U.S. and with at least one blank page
  • A coloured passport taken within the last 6 months, unless your photo was uploaded at the same time as the Form DS-160.
  • Evidence of previously issued U.S. Visas, if any
  • A letter that details your job description, including the description of the treaty investor’s business, your role in the business, your qualifications for the role, and your salary plus benefits.
  • An organizational chart which defines the executive, managerial or essential role in the business
  • An updated resume
  • A copy of certificates, diplomas or professional qualifications
  • A copy of the approval letter of the registered E2 business
  • A signed and dated intent to depart once your visa expires
  • If your name has been changed, a copy of the name change by deed poll
  • A police certificate or ACROW if you have a previous history of being arrested, cautioned or convicted
  • A letter from a physician which discusses your health, if you have a medical condition which would affect your eligibility for the visa
  • Any document that can be relevant to your application

Take note that this list is not exhaustive and there may be additional documents that you might need to bring depending on your circumstances.

Meanwhile, if you’re planning to change to an E2 status in the U.S., you must file a Form I-129 along with an E supplement.

Davies & Associates has the right immigration lawyer for your E2 Visa application which can help you determine the right documents you may need depending on your circumstance and help increase your chances of getting approved.

Requirements to petition for E2 Employees

To be eligible to petition for E2 employees, the prospective employer must fulfil the following requirements:

  • Be a citizen of a treaty country, which is a country that has a treaty of commerce and navigation that has a qualifying international agreement with the U.S. or that has been deemed qualified by law.
  • If it’s a company or organization, have at least 50% of it owned by citizens of a treaty country. These owners must maintain a nonimmigrant treaty investor status if residing in the U.S. or if not residing in the U.S., who would be classifiable as treaty investors.

If you’re the E2 employee that will be hired, you must have the same nationality as your employer. Once you’ve fulfilled that requirement, there are two requirements that your employer must possess depending if they’re located in the U.S. or abroad.

E2 Employer located in the U.S.

If your employer is located in the U.S., they must have an E2 Treaty Investor visa. They can’t be in the U.S. under any visa classification other than E2 to be eligible to hire employees under the E2 Employee Visa.

If the U.S.-based employer is a company or organization, at least 50% of it must be owned by citizens of a single treaty country and maintain an E2 treaty investor status in the U.S. The company or organization must only have one nationality as an E2 employer unless it’s controlled equally by nationals of 2 treaty countries maintaining an E2 treaty investor status in the U.S.

E2 Employer located abroad

If the employer is an individual, they must be classifiable as an E2 treaty investor.

Meanwhile, if it’s a company or organization, at least 50% of it must be owned by citizens of a single treaty country and maintain an E2 treaty investor status in the U.S. The company or organization must only have one nationality as an E2 employer unless it’s controlled equally by nationals of 2 treaty countries maintaining an E2 treaty investor status in the U.S.

Take note that persons abroad who are U.S. citizens or lawful permanent residents may not be counted even if they also have the nationality of an E2 treaty country.

Job duty requirements for an E2 Employee

Job creation and hiring employees is one of the important parts of the E2 Visa program. The treaty investor must show that their investment has the potential to generate full-time jobs in the U.S. Although it’s not required to be immediate, the business must contribute eventually to the U.S. labor market.

If the treaty investor is planning to hire employees from their treaty country, there are certain requirements for job roles. If you’re planning to obtain an E2 Employee Visa, you must either be working in an executive or supervisory position or possess essential skills for the successful operation of the U.S. business.

Employees with Executive or Supervisory Positions

Various factors need to be taken into account in determining if you will be pursuing an executive or supervisory role in the E2 enterprise. These include the title, the duties, the salary, its position in the organizational chart, the degree of control and responsibility the applicant will have on the overall operations, the people whom you will supervise, and whether you possess any relevant experience.

Moreover, the executive or supervisory aspect of the role must be the principal and primary function and not merely incidental. This means that if your position primarily involves routine staff work and secondarily entails supervision of other employees, then you may not be classified as an executive or supervisory employee for the E2 Employee Visa.

Additionally, if you’re occupying a supervisory role, the business must be sufficiently large enough for you to supervise a key part of it. It’s not acceptable that you would only be supervising lower-level employees in the same business.

Employees with Essential Skills to the Operations

Different factors need to be taken into account when determining if you have the skills essential to the successful operation of the U.S. business. These include your experience, training, the uniqueness of your skills, the availability of U.S. workers with the same skills, the salary, your expertise, and the function of your future job in the U.S. business.

There are cases where ordinarily skilled workers may also qualify as essential employees when such employees are needed for startup or training purposes. Take note that under this type, you are essentially needed for your specialized knowledge and familiarity with overseas operations.

E2 Employee Visa Duration

The E2 Employee Visa is usually based on a reciprocity schedule with the treaty country. However, it should be noted that the applicant has the burden of establishing the duration of essentiality.

E2 Employee Visa Extension

The E2 Employee Visa can be extended indefinitely provided that the E2 enterprise continues to meet the requirements and that the employee shows their intent to return once their visa expires.

If you’re planning to extend your visa, you must apply for the extension before the expiry of your current grant of leave to maintain your E2 status.

Take note, however, that this visa classification doesn’t give you a direct path to a lawful permanent resident status. You would need to look into other visa options to transition to become a permanent resident.

E2 Employee Visa Costs

You must pay a non-refundable fee of $205 for Form DS-160 to apply for an E2 Employee Visa. This means that for every denied application, you must pay the required application fees to apply again.

Meanwhile, if you’re a treaty investor, you may also check out the complete E-2 Visa cost.

E2 Employee Visa Dependents

As an E2 Employee Visa holder, your spouse or unmarried children under the age of 21 can accompany you to the U.S. under your visa. They may be admitted for the same period as yours and may also be eligible for extensions. Your spouse may apply for work in the U.S. without the need for an Employment Authorization Document (EAD), while your children may attend school.

FAQs

Is there an educational requirement such as a bachelor’s degree before I can be eligible for an E2 Employee Visa?

No, unlike other work visas, the E2 Employee Visa doesn’t require that you possess the relevant bachelor’s or master’s degree. While this could be helpful, it’s not one of the requirements for the visa category. As long as you possess the requirements, then you can apply for an E2 Employee Visa.

How long do I have to wait once I apply for an E2 Visa?

The processing times can vary depending on the type of your application and where you apply. If the business is already registered as an E2 business, then the process can be faster and easier.

In terms of location, the processing times can also vary depending on the U.S. Embassy or Consulate. Some consular officers complete the applications within a week while some may take months. If you’re applying for a change of status while in the U.S., the USCIS has a premium processing service where your application can be expedited in 15 days rather than weeks or months.

Can the E2 Visa grant me a green card?

The E2 Visa is classified as a nonimmigrant visa, which means that although it can be renewed indefinitely, it’s still a temporary visa. If you’re an E2 Visa holder, you would need to look for other visa classifications to be able to apply for a green card.

What is the minimum investment required for an E2 Visa?

There is no given amount for it to be considered as a sufficient investment under the E2 Visa. Substantial may depend on the E2 business, but the investment must be sufficient to ensure the treaty investor’s financial commitment to the success of the enterprise.

Does the employee need to invest money in the U.S. enterprise?

No, the investment requirement is necessary only for the treaty investor applying for an E2 visa.


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


E-2 Visa approved for a Singaporean national during COVID-19

Decoding 221g Administrative Processing

Pursuant to your non-immigrant visa (L, H-1B, E-2, O-1) interview, the consular officer will typically indicate whether they are approving or refusing/denying the visa.  But at times, officers may require additional information due to which they are unable to approve or deny the visa at the end of the interview.  In such instances, the officer will “refuse” the visa application placing it under “221g Administrative Processing,” requiring further scrutiny.  Generally, the applicant will receive a notice from the consular officer indicating that their case is undergoing administrative processing, and in some situations, listing further documents that may be needed.

There’s often confusion that a “Refused” visa status on the Department of State’s case portal means that the visa was denied. A Refused status in the context of administrative processing does not mean that the visa was denied or that the refusal is final; it means that the final decision is put on hold until necessary checks are completed.  A refusal may be overcome by providing further information and/or documents as may have been requested by the consulate.

Possible Reasons for Administrative Processing

  • Additional Background Checks – In certain situations, a consular officer will need to verify or confirm certain data.  For example, in H-1B cases, where the applicant will be deployed to an end-client worksite, common in the IT industry, the officer may need to contact the end client to verify assignment and worksite details or employer-employee relationship. 
  • Missing Documentation or Information – If any material information is missing or inaccurate, the officer will likely not make a decision and request further information or clarification as they deem fit. 
  • Criminal Background – If an applicant has a criminal record, the consular officer may need to conduct additional checks to determine their visa eligibility and further evidence such as police and court records may be needed.
  • Prior Visa denial – A prior visa denial does not necessarily hinder obtaining a visa in the same category (or a different one).  That said, if an applicant is unable to satisfactorily explain the change in circumstances from the last visa denial if applying in the same visa category, the consular officer may issue a 221g notice requesting further documentary evidence to clarify change in circumstances.  
  • Material Misrepresentation or Fraud Suspicion – Should an officer suspect fraud, for example, material inconsistencies in information provided in the petition and the applicant’s responses, the consular officer may want to perform additional checks or forward the application to their Fraud Prevention Unit for further investigation, which could involve employer site visits and interviews. 
  • Legal Question – In cases involving complex ownership corporate structures in the E-2 and L-1 visa context, an officer may want to seek guidance from higher authority or wish to review necessary departmental guidance and regulations. 
  • Petitioner Information Management Service (PIMS) – This generally happens when the underlying non-immigrant petition (filed with the United States Citizenship and Immigration Services) has not been updated at the Kentucky Service Center, which scans the duplicate into PIMS systems for consulates to access petition data.

 Timeline and What Can be Done?

There is, unfortunately, no predictable timeline to the administrative processing phase, it can take from a few weeks to several months. 

If the consulate requests specific documents or information via their letter or email, one should ensure that the requisite items are submitted promptly as per their submission instructions. 

DOS has stated that their goal is to complete administrative processing within 60 days.  It is advisable to write to the post (via email and through their online portal) regarding the status of your case if there’s no decision within this timeframe.  If you believe that the consular officer expressed concern regarding any specific point or that you were unable to answer a material question, it might help to address that particular concern or question by way of an email to the consulate.

If the case is stuck in administrative delay for  n excessive period of time, a Mandamus lawsuit could be an option, seeking a U.S. court’s order to direct the post to adjudicate the visa application.

Once the administrative processing is complete, the consulate will issue the visa or refuse/deny it.  In cases where fraud is suspected, the consulate may return the petition to the USCIS with a recommendation for revocation. 

What to Bear in Mind

Administrative processing not only prolongs visa adjudication but to an extent, adds an element of uncertainty; hence it’s important to apply well in advance and factor in such delays.  Certain factors prompting administrative delays are beyond one’s control.  That said, to minimize chances of such delays, the applicant should be prepared to answer all questions as best they can and truthfully.  If you believe there’s anything in the petition or your background that might warrant scrutiny, ensure that you have the necessary explanation and supporting evidence if any.  And very importantly, it helps greatly to understand the requirements of your visa category and be well versed with key petition documents.  As good practice, one should carry all pertinent paperwork to the interview.

D&A attorneys routinely assist and guide visa applicants in the consular processing stage.  Please feel free to contact us if you require assistance in this regard.


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.


L1 Visa India

United States Sets Visa Records in India in 2023

In a recent press release, the U.S. Mission in India has stated that in 2023, the consular team in India processed more non-immigrant and immigrant visas than ever before – a record-breaking 1.4 million.  There was a 60% hike in visa applications compared to the previous year, with demands surging across all visa categories.

Employment visas remain a top priority.  Consular officers in India processed over 380,000 employment visas (L-1, H-1B, etc.) for Indians and their family members in 2023 alone. Most petition-based visa processing was consolidated in cities such as Chennai and Hyderabad to increase efficiency and maintain minimal appointment wait times.  

The U.S. stateside 2024 pilot program which has kicked off, allows certain H-1B employees to renew their visas in the U.S., further streamlining processing.

The post in Mumbai which processes immigrant visas in India eliminated a queue of over 31,000 immigrant visa cases delayed by the pandemic.  Immigrant visa applicants can now obtain an appointment within the standard, pre-pandemic appointment window.

The U.S. Mission continues to invest in the future of consular services in India and explore ways to provide more efficient and convenient services.  

Source: https://in.usembassy.gov/


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.


H1-B visa India Interview

The Pilot Program to Renew H-1B Visa Applications within the U.S 

The Department of state has launched a pilot program to resume visa renewals for qualified H-1B non-immigrant visa applicants within the U.S. nearly after two decades.

The program has started from January 29, 2024, through April 1, 2024, or when all application slots are filled, whichever comes first. Under this program the department will make a maximum of 20,000 application slots available for approximately 4,000 per week for applicants whose most recent H-1B visa was issued by U.S. Mission India with an issuance date of February 1, 2021 through September 30, 2021, and for applicants whose most recent H-1B was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023.

This move will help to reduce the workload on officers at the U.S. consulate abroad and also the H1-B beneficiary could continue stay within the country while the visa is being processed. This move will surely a good start, if and when the program becomes permanent it would be a smooth renewal process.

Who are eligible for renewal within the country?

Applicants who fulfil the below criteria shall be eligible for renewal within the country

· Seek to renew an H-1B nonimmigrant visa only;

· Prior H-1B visa that is being renewed was issued by U.S. Mission India or by U.S. Mission Canada;

· Are not subject to a non-immigrant visa issuance fee also known as commonly “reciprocity fee”;

· Are eligible for a waiver of the in-person interview requirement;

· Have submitted ten fingerprints to the Department in connection with a previous visa application;

· Prior visa does not include a “clearance received” annotation;

· Do not have a visa ineligibility that would require a waiver prior to visa issuance;

· Were most recently admitted to the United States in H-1B status;

· Are currently maintaining H-1B status in the United States;

· Have an approved and unexpired H-1B petition;

· Period of authorized admission in H-1B status has not expired; and

· Intend to re-enter the United States in H-1B status after a temporary period abroad.

If the above criteria’s are met then the applicants must submit following list of documents and fees to renew the visa within the U.S.

· A DS-160 barcode sheet for a properly completed and electronically filed form DS-160, Online Non-immigrant Visa Application

· A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains at least two blank, unmarked pages for placement of a visa foil. RECOMMENDED: A passport containing the most recently issued H-1B visa if the visa is not in the current passport

· Non-refundable and non-transferable $205.00 MRV application processing fee

· One photograph not older than six months

· Copy of current Form I-797, Notice of Action

· Copy of Form I-94, Arrival-Departure Record

The department is processing only H-1B Visa and not H-4 visas under the program. However, if the program becomes permanent then maybe more non-immigrant visa category shall be added such as L-1 visas, E-2 Visa, etc.


This article has been written by Sukanya Raman, Davies & Associates, India Office.

Sukanya is an Independent Consultant working the capacity of Associate of the firm’s Bengaluru office. She earned her first undergraduate degree in Commerce from Mumbai University in 2013 and her second undergraduate degree in Law from Indian Law Society’s Law College, Pune at Savitribai Phule Pune University in 2017.

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