Visa Lawyer Blog

Articles Posted in E2 Investor Visas

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Welcome back to Visalawyerblog! It is the start of a brand-new week and we are excited to bring you more updates in the world of immigration.

We are happy to report that the Department of State has released important information for nonimmigrant visa applicants who may qualify for an interview waiver. That’s right. Certain nonimmigrant visa applicants will now be eligible to obtain a renewal of their visas without being required to attend a Consulate interview.

Who may take advantage of Non-Immigrant Visa Interview Waivers?

The Secretary of State, Antony Blinken, has consulted with the Department of Homeland Security, and temporarily expanded the ability of Consular officials to waive the in-person interview requirement, which is normally required of all individuals seeking nonimmigrant visas in the same visa classification – in other words renewal applicants.

Prior to the COVID-19 pandemic, interview waivers were only available to those applicants whose nonimmigrant visa was set to expire within 24 months.

The Secretary has now temporarily extended the Interview Waiver eligibility to those whose visas are set to expire within 48 months. This new policy will be in effect until December 31, 2021.

According to the Department of State, “This change will allow consular officers to continue processing certain nonimmigrant visa applications, while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.”

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In this blog post we share with our readers several new developments in immigration relating to COVID-19.

At a Glance: What’s in This Blog?

  • DOS Announces One-Month Extension for Immigrant Visa Medical Examinations
  • Phased Resumption of Routine Visa Services
  • DOS Releases SEVP Online Course Guidance for F and M Students for Fall 2020
  • When will the Presidential Proclamation Suspending Entry for the Schengen Countries be Lifted?
  • Are there any National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland?
  • Are there any National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market?

DOS Announces One-Month Extension for Immigrant Visa Medical Examinations

We are pleased to report that on July 24, 2020, the Department of State issued an important announcement confirming that the Centers for Disease Control and Prevention (CDC) have approved a one-month extension for medical examinations conducted between January 1, 2020 and June 30, 2020. As many of you know, medical examinations for immigrant visa applicants are valid for a maximum of six months.

The Department of State has advised applicants (1) who were unable to travel on an issued visa, or (2) who obtained a medical examination but did not receive a visa, to contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued or is adjudicating your visa application to determine whether you may be issued or reissued a visa for one additional month. Applicants who are unable to travel within one additional month, should consider waiting until they are able to travel to obtain a new, full validity medical examination and visa.

Phased Resumption of Routine Visa Services

In March 2020 the Department of State suspended routine visa services worldwide in response to the Coronavirus pandemic. On July 14, 2020 the Department of State released information on its webpage notifying the public that resumption of routine visa services will occur on a post-by post basis, in coordination with the Department’s Diplomacy Strong framework to safely return personnel to Department facilities. With that being said, the Department of State cannot provide a specific date for when each Consular post will return to processing at pre-Covid workload levels. Applicants are advised to monitor each individual U.S. Embassy or Consulate’s website for information regarding operating status, and updates on which services they are currently offering.

As always, U.S. Embassies and Consulates will continue to provide emergency and critical visa services.

The DOS has also stated that MRV fees are valid and may be used to schedule a visa appointment in the country where it was purchased within one year of the date of payment.

  • For more information about this announcement and FAQs please click here.
  • For a list of Embassies and Consular webpages click here.

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President Signs New Bill Authorizing Additional Funding for PPP

Last week President Trump signed a new bill into law that provides an additional $310 billion in aid to small business owners that will be funneled into the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan program (EIDL) administered by the United States Small Business Administration (SBA).

As a recap, the PPP and EIDL was first introduced by the CARES Act (Coronavirus Aid, Relief, and Economic Security Act) to help small businesses keep workers on their payroll.

Out of the $310 additional funding, $60 billion will go toward the EIDL program, $250 billion will go toward PPP loans, and $60 billion will be set aside for community banks and community development financial institutions (CDFIs).

Additional funding was required because the first round of $349 billion in aid ran out after just a few weeks of the program being put into effect.

Small business owners who are still need of funds to help pay their company’s payroll costs should take advantage of the additional funding as soon as possible. Intense demand remains high for these forgivable-low interest loans, and funding will dry up quickly.

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For many small businesses struggling to survive in the wake of the COVID-19 pandemic, receiving a Paycheck Protection Program (PPP) loan was the only option to stay afloat.

Unfortunately, the $350 billion in aid set aside by the CARES Act has run out. While it is believed that Congress will approve a second round of appropriations to fund the Paycheck Protection Program throughout the pandemic, there is no guarantee that this will occur.

What will happen to those who applied for a loan but did not receive any funds before the money ran out?

Those who submitted a PPP application through their lenders still have a good chance of getting funded as financial institutions continue to process loan applications that were submitted. Many lenders have not gotten around to notifying borrowers that they have been approved and will be funded. Borrowers should contact their lenders to follow up with the process.

Furthermore, according to recent information provided to the American Immigration Lawyers Association (AILA) by SBA expert Chris Chan, small business owners should keep the following things in mind when considering their next steps:

  • Businesses that applied up until a few days ago still have a real shot at hearing good news from their banks. Those that have already been approved by their bank should all get money within the 10 days required by law.
  • If the loan has an SBA number attached to it, that means it made it through the initial phase of processing and will likely be part of the loan amount that’s been approved. It doesn’t mean the loan could not be denied for other reasons, but there is hope in this scenario.
  • Other loans submitted under PPP may be declined, which would free up cash under the $349 billion for other loans in the queue to be processed.
  • There is bipartisan support of adding an additional $250 to $300 billion to the program in CARES Act 2. Congress is hung up over other provisions and adaptations that they want in the program, but there was news coverage this weekend that indicated they are close to an agreement.

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In this post we would like to address some of our clients frequently asked questions regarding the Payment Protection Program, a loan forgiveness program created by the CARES Act (Coronavirus Aid, Relief, and Economic Security Act).

In response to the Coronavirus pandemic, the United States government recently passed a bill providing emergency financial relief to individuals, families, and small businesses. As you know, the majority of states nationwide have issued stay-at-home orders requiring the public to avoid all nonessential outings and stay at home as much as possible. Non-essential businesses have also been ordered to close their facilities to the public until further notice. Essential businesses have been allowed to continue to operate such as grocery stores, pharmacies, health care facilities, banking, law enforcement, and other emergency services.

One of the main provisions of the bill, known as the CARES Act (Coronavirus Aid, Relief, and Economic Security Act), allocates billions of dollars in loans to small businesses who are feeling the economic impact of the stay-at-home orders. The CARES Act specifically authorized the Small Business Administration (SBA) to create the Payment Protection Program for the purpose of providing financial assistance to small businesses nationwide that have been adversely impacted by the COVID-19 crisis. SBA lenders began accepting loan applications from small business owners on April 3, 2020. Applications will continue to be accepted until June 30, 2020. It is important for business owners to apply for these loans as soon as possible.

  1. What is the Payment Protection Program?

In a nutshell, the Payment Protection Program is a loan forgiveness program that allows small businesses (of 500 or fewer employees) to apply for loans of (1) $10 million or (2) 2.5x the average total monthly payments of the company’s payroll costs, whichever is less.

Loans under this Paycheck Protection Program (PPP) will be 100 percent guaranteed by SBA, and the full principal amount of the loans will qualify for loan forgiveness provided that:

(1) the business was in operation on February 15, 2020 and either had (a) employees for whom you paid salaries and payroll taxes or (b) paid independent contractors as reported on Form 1099;

(2) all employees are kept on the payroll for 8 weeks and;

(3) the money is used for payroll costs, rent, mortgage interest, or utilities (at least 75% of the forgiven amount must have been used for payroll).

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On January 23, 2020, the United States Citizenship and Immigration Services (USCIS) formally announced by way of a notice published in the Federal Register that nationals of Iran and their dependents are no longer eligible to change or extend their stay in E-1 or E-2 nonimmigrant status due to the termination of the 1995 Treaty of Economic Relations (also known as the Treaty of Amity) between the United States and Iran.

Under current immigration law, “the existence of a qualifying treaty or authorizing legislation is . . . a threshold requirement for issuing an E visa.” Therefore, the termination of the Treaty of Amity between the United States and Iran no longer provides a basis for Iranian nationals to qualify for the E nonimmigrant visa classification.

When did the Treaty end?

On October 3, 2018, the U.S. Department of Homeland Security notified Iran of the Termination of the Treaty of Amity. On October 23, 2019, the Department of State provided DHS with formal notice of the termination of the treaty. Currently, there are no other qualifying treaties with Iran or any legislation for granting E-1 or E-2 status to Iranian nationals.

What does this mean?

Accordingly, a national of Iran is no longer eligible for an extension of stay in E-1 or E-2 status or a change of status to E-1 or E-2 on the basis of the Treaty of Amity.

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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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In this blog post we highlight the best features of E-2 Treaty Investor Visa program, for individuals seeking to live and work in the United States for a temporary period of time.

First let’s discuss what the E-2 visa is. The E-2 visa is a non-immigrant visa type, which means that it is a temporary visa option for individuals who do not wish to immigrate to the United States, but rather are interested in remaining in the United States for a limited period of time.

Secondly, the E-2 visa is a treaty investor visa. This means that in order to qualify for this visa type you must be a national of a country with which the United States maintains a treaty of commerce and navigation. This visa type allows a national of a treaty country to apply for admission to the United States under the E-2 visa category for the purpose of investing a substantial amount of capital in a United States business.

Currently, 89 countries maintain a treaty of commerce and navigation with the United States. Israel and New Zealand are the most recent countries to enter into a treaty commerce and navigation with the United States, allowing nationals of these countries to participate in the E-2 visa program. For a complete list of the countries with which the U.S. maintains a treaty of commerce and navigation, please click here.

The most frequently asked question when it comes to the E-2 visa is, how much money must I invest in order to qualify for this visa type?

The amount of money that must be invested depends on the nature of the business’ operations. USCIS defines the amount of capital to be invested as “a substantial amount of capital” interpreted as:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

Thirdly, to qualify for the E-2 visa the investment must be in a bona fide business enterprise that is real, active, and operating and is producing either services or goods for profit. Passive investments are not allowed.

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New Zealand Now Eligible to Apply for E-1 and E-2 Investor Visas

Beginning June 10, 2019, New Zealand nationals can apply for the E visa categories thanks to the President’s enactment of the Knowledgeable Innovators and Worthy Investors (KIWI) Act. Applicants who are already in the United States on a valid non-immigrant visa may now apply for a change of status to an E visa.

The E visa does not provide a direct path to permanent residency, but it is a great option for individuals who wish to live and work in the United States with their families for a temporary period of time. There is no set limit on the maximum amount of time an individual may remain on the E visa, but applicants must intend to depart at the end of their period of authorized stay in the United States.

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We are pleased to announce very exciting news for our Israeli clients. The U.S. Embassy in Israel has announced the implementation of the U.S. E-2 Investor Visa Program for Israeli nationals, beginning May 1st.

Our Israeli clients have been waiting for this opportunity for years and we are very happy to tell you that you will now have the opportunity to apply for the E-2 visa as an Israeli national, beginning May 1st.

The E-2 investor visa is a non-immigrant temporary visa that allows foreign nationals from participating countries to invest in the creation of a new business, or in an existing business. The E-2 visa applicant can apply for the E-2 visa to develop, direct, or provide their specialized skills to the company they are investing in.

To qualify for a Treaty Investor (E-2) visa:  

  • The investment must be substantial and sufficient to ensure the successful operation of the enterprise;
  • The business must be a real operating enterprise;
  • The investor must be traveling to the U.S. to develop and direct the enterprise;
  • If the applicant is not the investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

Requirements

  • The investor, either a person, partnership or corporate entity, must be a citizen of a treaty trade/investment country, and be involved in international trade.
  • If the investor is a company, at least 50% of the owners in the qualifying company must maintain the nationality of a treaty trader country if they are not lawful permanent residents of the U.S. If these owners are in the U.S., they must be in E-1 or E-2 status.
  • The investment funds and the applicant must come from the same Treaty Country.
  • The business in which investment is being made must provide job opportunities or make a significant economic impact tin the United States. The business should not be established solely for the purpose of earning a living for the applicant and his or her family.

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