Immigration Law

Are you or a company you are affiliated with interested in coming to the United States or bringing an employee to work in the United States? Are you interested in investing in a United States business or are you a U.S. business interested in attracting foreign investment? Smothers Law Firm assists clients in gaining entry into the United States with business and investor related visas. While family based petitions can take several years to produce results, some business and investor visas take as little as a month or two to grant entry into the U.S.

There are a few options for foreign nationals, and each individual’s situation is different. Consulting with an attorney that specializes in visa applications and petitions can help you figure out which option is best for you. Below are a few options that Smothers Law Firm can assist you with and offers to its clients:

E2 Treaty Investor Visa

The E-2 nonimmigrant visa allows a national of a country with which the United States maintains a treaty of commerce and navigation to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such an investor or organization may also be eligible for this visa.

General Requirements:

  • The investor, either a person or corporate entity, must have the citizenship of a treaty country;
  • If a corporate entity, at least 50 percent of the entity must be owned by foreign nationals with the treaty country’s nationality;
  • The investment must be substantial, with investment funds or assets committed and irrevocable. The investment must be enough to ensure the successful operation of the enterprise;
  • The investment must be made into a real operating commercial enterprise. An inactive business or idle investment does not qualify. Uncommitted funds in a bank account or similar idle asset investments are not considered an E2 qualifed investment;
  • The investment cannot be marginal- it must generate significantly more income than just to provide a living to the applicant and their family, or the investment must have a significant economic impact in the United States;
  • The applicant must have control of the investment funds, and the investment must be placed at risk. Loans secured with assets owned by the investment enterprise are not allowed; and
  • The applicant must be coming to the United States to develop and direct the investment enterprise. If the applicant is not the principal investor, the applicant must be considered an essential employee- employed in a supervisory or executive role, or the applicant must have a highly specialized skill. Ordinary employees and unskilled workers do not qualify for an E2 visa. 

 

To qualify as an E2 investment, the treaty investor must place capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. In other words, the capital must be subject to partial or total loss if the investment fails. The treaty investor must also show that the funds have been obtained from lawful sources. The treaty investor must also demonstrate a bona fide intent to leave the country once the investment enterprise is closed down or the visa has expired without renewal. See 8 CFR 214.2(e)(12) for more information.

L-1A Intracompany Transferee Executive or Manager Visa

The L-1A nonimmigrant visa allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This visa also allows a foreign company with no affiliated U.S. office to send an executive or manager to the United States to open a U.S. office.

General Requirements:

To qualify for an L-1A visa, the employer must:

  • Be affiliated with a foreign company (parent company, branch, subsidiary, or affiliate; and
  • Currently be, or show intent to soon be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. The business must show that it is or will soon be viable, but there is no requirement that it be engaged in international trade.

 

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an office of the qualifying organization in the United States and abroad.

To qualify, the beneficiary employee must also:

  • Have been working for the qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  • Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch or office of the same employer or one of its qualifying organizations.

EB-5 Immigrant Investor Visa

The Immigrant Investor Program, also known as “EB-5,” was created to stimulate the U.S. economy through job creation and capital investment by foreign investors. Certain EB-5 visas are set aside for investors in qualifying EB-5 Regional Centers designated by USCIS based on proposals for promoting economic growth. EB-5 visas grant the immigrant investor(s) a conditional residency status. After two years, the immigrant investor(s) can apply to have the conditions removed, and enjoy permanent legal resident status in the United States.

General Requirements:

  • All EB-5 investors must invest in a new commercial enterprise;
  • The commercial enterprise must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the immigrant investor’s admission to the United States;
  • The 10 job creation requirement can be met through creating direct jobs or indirect jobs in certain projects. Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital. Indirect jobs are jobs shown to have been created as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. An EB-5 investor may only use the indirect job calculation if affiliated with a qualified regional center;
  • To qualify as an immigrant investor, a foreign national must invest, without borrowing, the following minimum capital amounts in a qualifying commercial enterprise:
    • $1,000,000 or
    • $500,000 in a high-unemployment or rural area, considered a “targeted employment area”;
  • The EB-5 investment must be capital that is placed at risk in the commercial sense, by being subject to partial or total loss if the investment fails. The investor must also show that the source of the investment was procured by lawful means; and
  • The specific requirements vary depending on whether the immigrant investor invests directly into a commercial enterprise, or whether the investment is made through a qualified regional center.

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