Business Based Immigration

The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital.

 

Requirements: Treaty Trader

 

• The applicant must be a national of a treaty country;

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

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

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

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

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

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Requirements: Treaty Investor

 

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

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

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

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

• The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed; and

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

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Required Documentation

 

• Each applicant for the visa must pay a nonrefundable US$100 application fee and submit:

• An application Form DS-156E , completed and signed. Blank forms are available without charge at all U.S. consular offices.

• A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person must complete an application.

• One (1) 2x2 photograph. See the required photo format explained inNonimmigrant Photograph Requirements.

• All male nonimmigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must complete and submit a form DS-157 in addition to the Nonimmigrant Visa Application (DS-156E).

• As part of the visa application process, an interview at the embassy consular section is required for almost all visa applicants. The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged. During the visa interview, a quick, two-digit, ink-free fingerprint scan will be taken, as well as a digital photo. Some applicants will need additional screening, and will be notified when they apply.
   

Optional Documentation

 

An applicant for a Treaty Trader (E-1) or Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law. The consular officer will provide the applicant with special forms for this purpose. An applicant may also be asked to provide evidence, which illustrates that the stay in the U.S. will be temporary. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

 

U.S. Port of Entry

 

A visa allows a foreign citizen coming from abroad, to travel to the United States port-of entry and request permission to enter the U.S.  Applicants should be aware that a visa does not guarantee entry into the United States. The Department of Homeland Security, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the United States.  If you are allowed to enter the U.S., the CBP official will determine the length of your visit on the Arrival-Departure Record  (Form I-94). Since Form I-94 documents your authorized stay in the U.S., it’s very important to keep in your passport.  Upon arrival (at an international airport, seaport or land border crossing), you will be enrolled in the US-VISIT entry-exit program. In addition, some travelers will also need to register their entry into and their departure from the U.S. with the Special Registration  program. The Department of Homeland Security, Customs and Border Protection internet site offers additional information on Admissions/Entry requirements.

 

Family Members

 

Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Dependents are not authorized to work in the United States.

 

The following countries are eligible for both E-1 and E-2 visas unless indicated by an asterisk:

Argentina, Australia, Austria, Bangladesh**, Belgium, Bolivia*, Bosnia-Herzegovina, Brunei*, Bulgaria**, Cameroon**, Canada, Colombia, Congo**, Costa Rica, Croatia, Czechoslovakia**, Denmark*, Egypt**, Estonia*, Ethiopia, Finland, France, Germany, Greece*, Grenada**, Honduras, Iran, Ireland*, Israel*, Italy, Japan, Kazakhstan**, Korea, Kyrgyzstan**, Latvia*, Liberia, Luxembourg, Mexico, Moldova**, Morocco**, Netherlands, Norway, Oman, Pakistan, Panama**, Paraguay, Philippines, Poland**, Romania**, Senegal**, Slovak Republic**, Slovenia, Spain, Sri Lanka**, Surinam, Sweden, Switzerland, Taiwan, Thailand, Togo, Tunisia**, Turkey, United Kingdom, Yugoslavia.

* indicates country is eligible only for E-1 visa
** indicates country is eligible only for E-2 visa

 

Immigration Through Investment
 

Overview

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”

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A "Regional Center:"

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• Is an entity, organization or agency that has been approved as such by the Service;

• Focuses on a specific geographic area within the United States; and ,

• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

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"Alien investors" must:

• Demonstrate that a "qualified investment" (see below) is being made in a new commercial enterprise located within an approved Regional Center; and,

• Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

 

Eligibility
 

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.

In general, "eligible individuals" include those:

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1. Who establish a new commercial enterprise by:

   • creating an original business;

   • purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or

   • expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and

2. Who have invested -- or who are actively in the process of investing -- in a new commercial enterprise:

   • at least $1,000,000, or

   • at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB; and

3. Whose engagement in a new commercial enterprise will benefit the United States economy and:

   • create full-time employment for not fewer than 10 qualified individuals; or

   • maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

 

How do I ...Seek Status as an Immigrant Investor

In order to seek status as an immigrant investor, you must file CIS Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements, such as:

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• establishing a new commercial enterprise,

• investing the requisite capital amount,

• proving the investment comes from a lawful source of funds,

• creating the requisite number of jobs,

• demonstrating that the investor is actively participating in the business; and, where applicable,

• creating employment within a targeted employment area.
   

How do I ...Obtain Status as a Conditional Resident

Once the Form I-526 is approved, immigrant investors may obtain status as a conditional resident by:

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• Filing Form I-485, Application to Register Permanent Residence or Adjust Status, if residing within the United States