Trade Treaty Visa
Foreign national investors can use investment visa to expand their business
in the U.S. There are three elements necessary which if any of these misses,
the visa can not be issued:
1. A treaty must exist between the U.S. and the native country of the
alien
2. Nationals of the native country must control or own majority of the
investment or trading.
3. Each employee or principle of the company must have the citizenship
of the native country.
There is no petition required to be filed in the U.S.; the applicant can apply directly to a U.S. consular office abroad.
The spouse and minor children of the main alien can accompany him/her to the U.S. under the same principle as him/her while they are not required to have the same nationality. Investment must be substantial
The investment required for treaty investor status must be “substantial.” No set dollar figure constitutes a minimum amount of investment to be considered “substantial” for E-2 visa purposes. The requirement is met by satisfying the “proportionality test.” The test is a comparison between two figures: the amount of qualifying funds invested, and the cost of an established business or, if a newly created business, the cost of establishing such a business. The amount of the funds or assets actually invested must be from qualifying funds and assets. The cost of an established business is, generally, its purchase price, which is normally considered to be the fair market value. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational. The actual cost can usually be computed as the investor should have already purchased at least some of the necessary assets and, thus, be able to provide cost figures for additional assets needed to run the business. The value (cost) of the business is clearly dependent on the nature of the enterprise.
Proportionality test
The amount invested in the enterprise should be compared
to the cost (value) of the business by assessing the percentage of the
investment in relation to the cost of the business. If the two figures
are the same, then the investor has invested 100 percent of the needed
funds in the business, and such an investment is substantial.
Illustrations: A newly created business might need only $50,000 investment
to be set up and to become fully operational. As this cost figure is relatively
low, a higher percentage of investment, such as 90-100 percent, is anticipated.
A business costing $100,000 might require an investment of 75-100 percent
to meet the test. A small business costing $500,000 would demand generally
upwards of a 60 percent investment, with a $375,000 investment clearly
meeting the test. In the case of a million dollar business, a lesser percentage
might be needed, but 50-60 percent investment would qualify.fn61 A business
requiring $10 million to purchase or establish would require a much lower
percentage. . A $3 million investment might suffice in view of the sheer
magnitude of the dollar amount invested. An investment of $10,000,000
in a $100 million business would qualify based on the sheer magnitude
of the investment itself.
Caution: Assessing proportionality requires the use of judgment that takes
into account the totality of the factors involves and is not a simple
arithmetic exercise
.
Enterprise must be real, operating commercial enterprise
The enterprise, to qualify for treaty investor classification, must be a real operating commercial enterprise or active entrepreneurial undertaking, that is, a business venture productive of some service or commodity. The enterprise cannot be a fictitious paper organization, or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held with no intent to direct the enterprise
Enterprise must be more than marginal
The alien seeking treaty investor status must not be investing a relatively
small amount of capital in a marginal enterprise solely for the purpose
of earning a living. An alien is not entitled to treaty investor status
if the investment, regardless of its substantiality, will return only
enough income to provide a living for the applicant and the applicant’s
family.
There are various ways to help determine whether an investment is marginal,
in the sense of providing only a livelihood for the applicant. First,
the consular officer will look to the alien’s income or financial
situation, and if the applicant has another source of income or other
financial means to support him or herself and his or her family, then
the business is not deemed to be established for the sole purpose of earning
a living. If the income derived from the business exceeds what is necessary
to support the alien and the alien's family, then this too meets the test.
If the first test is not met, and it becomes necessary to consider other
factors, the consular officer may look to the economic impact of the business.
An applicant may show, for instance, that the investment will expand job
opportunities locally and/or that the income or return from such a business
will have a positive significant impact on the local economy. The investment
must be more than a mere conduit by which the alien seeks to enter the
skilled or unskilled labor market.
Contact experienced immigration and general practice attorneys
If you are a potential immigrant or are already in the United States, our lawyers can help you find successful answers to many of the legal issues that foreign citizens face. Please contact Wani & Associates for a free consultation. We can be reached by telephone, fax, or by filling out the client intake form.
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Wani & Associates, P.C.
Attorneys-at-Law
7777 Leesburg Pike, Suite 307N
Falls Church, VA. 22043
Phone: (703) 556-6626 Fax: (703) 556-6628
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WANI & ASSOCIATES, P.C provides quality legal services in immigration, personal injury, family law, bankruptcy, international trade, corporation and wills to residents of Washington, DC metropolitan area including, Virginia, Maryland, Fairfax County, Arlington, Alexandria, Falls Church, Woodbridge, VA; Montgomery County and Prince Georges County, MD and District of Columbia as well as international clients from the Middle East including Dubai, Kuwait, Qatar, Abu Dhabi, Iran, Jordan, Egypt, Lebanon, Morocco, Syria, Saudi Arabia, Iran and Iraq, from South Asian countries like Pakistan, India, Bangladesh, Nepal and Sri Lanka, from Latin America including El Salvador, Nicaragua, Honduras, Guatemala, Peru, Bolivia, Argentina, Brazil, Mexico and Colombia, United Kingdom and Europe.
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