Preparing to apply for a new E-2 visa

[Margrit]

I'm not sure to what extent potential E-2 investors consult this site, but I would like to make a few suggestions for new E-2 investors:

1. If at all possible, do not sell your residence in the UK prior to your visa approval. Although the regulations do not require that you maintain a residence in your home country, the consular officers in London look at the sale of a residence as an indication that the applicant may have "immigrant intent".

2. Foreign investors often overpay for a business they purchase in the US. It is very important to have a due diligence report prepared for the business by an independent accountant prior to purchasing the business.

3. Ideally, place the investment funds in escrow in the US for the purchase of the business upon approval of the E-2 visa rather than buying it outright, because there is not guarantee that the visa will be approved, not even if the investment is $300,000 and the business employs 5+ workers... The long processing times in London make this a difficult task, because sellers often are not able or willing to wait 6-12 months, but at times, arrangements can be made that suit both the seller and the buyer.

4. If you don't have school age children, you may be able to obtain a B2 visa to enter the US. This is easier if you own a home here. The B-2 visa will be helpful if your visa E-2 visa is denied. It will allow you to apply for E-2 status in the US, which will enable you to operate your business. E-2 status, however,is lost as soon as you depart from the US.

5. If your true intent is to stay in the US indefinitely, the E-2 visa is not the ideal visa. It is a temporary visa ... renewable, but still temporary.

6. If your financial situation permits it, the $500,000 "regional center" investor green card is a better option for people who seek permanent residence.

[Susie]

Hi Margrit

Some good points and I agree with most of what you say but definately not item no 4

The American embassy in London is/has been taking a dim view of people who goe the route.

There are many so called visa specialists advising this and the result is NO visa, the clients may have a valid status but no visa so landlocked and not a good idea

[Kriz1]

A good point Susie...it could be a reason why a business that looks very good...is being turned down...till we get facts...we just don't know...

[tracifrost]

again, not 100% sure in regards to E2 visa, but any kind of business operation where you are paid on a B1 business visa, and seen as taking payment of any kind is illegal on this type of visa. whether E2 or L1, it shouldnt be used to operate any form of business

[Margrit]

Well, E-2 status only is not an ideal situation for many people, but some actually do prefer being landlocked here rather than having to return home, especially if they make a good living with their business. Others stay in E-2 status while they invest in a regional center and wait for the green card. In other cases again, the investor maintains his/her status here while the spouse is being sponsored for the green card by a US employer.

There is no one size fits all solution. The more you know about all the options, even those that do not seem attractive ... the better off you are ;).

There are many Brits in Florida who 4-5 years ago were approved for a five year visa with investments from $70,000-$120,000 ..... Today they may employ 1-3 people and do quite well for themselves. Of course they can apply for a visa renewal ... but the criteria for "substantial investment" and "marginality" are no longer viewed in London the way they were 5 years ago. It's unfair maybe, but for the time being, it is so. Will it change again ??? ... nobody knows.

[Margrit]

You misunderstood me concerning the B2 visa. It is ABSOLUTELY forbidden to work with a B2 visa. The only reason to apply for one is if you may wish to change status in the US.

[chris]

Margrit,
Ref your point # 3 - funds in escrow. When we applied for our E2 in 2000, ours was a strat up business. Our VC's advised not to sign any leases, etc, until Visa approved, with all funds for the 'project' held in escrow. That was acceptable to the Embassy then. Infortunately, we have many examples where the Embassy have insisted that funds 'be committed' and people have signed up for long business premisies lease and therefore committed money before the Visa was adjudicated. That is clearly against the FAM rules in spirit and makes no commerical commonsense, yet that is what has and is still happening.
I think most people already know that the E2 is a NON-immigrant Visa and does NOT permit permanency in the same way way that a GC does, however for many that visa is the ONLY option they have to make the move over. The EB5 is still open to question and for many Brits the financial levels of investment are beyond them. Are we to agree that immigration be only a 'rich man's game"?
One glaring fault that I find with the E2 is that it works against against young families, due to the unfairness of the ageing out with their kids. For E2 Visa holders without family it is a reasonable visa as they have only themselves to consider. Whilst there are many E2 Visas holders who are young without kids, a good number are more mature and can almost be described as a semi-retirement visa vehicle (no slight intended to anyone). It is a reality that many start up businesses have owners that are young, by virtue of motivation, enthusiasm, get up and go, etc. Yet those same people will have young families and ultimately fall foul of ageing out. The visa as it stands does not help with the creation of growing vibrant businesses, because to a degree it discriminates against the very people who would be best able to create those businesses. Please do not think that I'm a young, anti mature person either. I celebrate 56 tomorrow, but please don't remind me about it!

[InnVic]

The best advice you can give to E2 applicants is to make themselves familiar with the E2 FAM rules and speak to a immigration attorney - personal interpretation does not help, it clouds the issue. The FAM manual states that many of the requirements for E2 are judged based on non specific standards and therfore a degree of discretion should be applied by the adjudicating officer. It also states that the burdon of proof lies with the applicant. We have to accept that not all E2 wannabees are cut out to run business, or have any understanding of what is expected. Blanket statements that $330K business with x number of employees will de denied is not helpful - there are so many factors and alot also depends upon the applicant, their experience and their ability to convince the officer that they qualify. I have an interview in London in 8 weeks and I am positive that my visa will be renewed. Maybe I will be proved wrong but I will not allow myself to succomb to the scaremongering anymore - if you go in prepared to fail you will not be dissapointed. The old saying "Misery loves company" seems to apply to alot of postings here but I bet for each failure there are dozens of success stories...
Okay so its not a walk in the park, or the rubber stamp excercise some expected renewal to be - but did you really expect to have a great new life without some hassle? The problems most of us are having are anticipation of failure - (remember Zoes case before her 5 year visa!) lets turn this around and think positive and miracles will happen!

[Margrit]

Chris:
No, I will not remind you ;) but happy birthday anyway!!!

The childrens' situation is awful, ... still, many E-2 investors' children change status to the F-1 student visa, pursue university studies, and with the Bachelor's Degree, get sponsored for the H-1B visa by a US company. After that, there are some options to obtain the green card. Sponsorship through labor certification by the employer ... or, (I didn't say this...;) marriage to a US citizen. 3-5 five years later, naturalization. .... and then, they can sponsor the parents..... It takes a long time ... but it is doable, with luck and motivation.

All this sounds a bit crazy ... but it happens all the time. It is not good to prematurely give up....

[peter gold]

Innvic
As I told you when we last spoke most of the E2 renewals of people I know or are associated with have been granted, and 100% of those who complied with the current application of the "Fam" Rules have got 5 years.
I agree with your optimism and like others am 100% against recommending anyone not to renew their visa, but just extend their 1-94 status.
They are postponing the inevitable. If there is a problem fix it then apply for renewal.The Consular Offiicers seem not to like the recent spate of late renewals of visa holders who have extended their 1-94.

[kirtida8]

Peter and Innvic, I agree with your points - but you have to remember that not everyone is in the lucky position of being able to meet all the criteria at the time of renewal. Take my scenario as an example - it is through no fault of mine that my business now no longer meets the criteria. Whilst I am taking active steps to remedy the situation, I am at the mercy of the judicial system and until the lawsuit is resolved, I have no option but to keep extending my status or go home and risk losing everything. At the end of this, I may still not get a renewal through London because I have extended my status - so where does that leave me, and others in similar situations?
Maybe the solution would be some sort of protection awarded to those who have been scammed?, but again this needs a change in the legislation. Despite all my setbacks, and days when I feel it is all too much - I am not giving up the fight to one day be able to renew my visa, hopefully in the US.

[peter gold]

Kay
Your sad indivudal circumstances mean that if you apply now for a renewal you wil not be able to comply with the FAM rules and will be refused. You must stay in status renewing the I-94 until you can comply with guidelines.
We are trying to get the message across you should avoid getting yourself into that position.
In your case it was unavoidable.

[Margrit]

Percentages are very interesting .... If one knows 5 E-2 visa holders and they were all approved .... I guess you can call it 100% approval rate... If you know 25 E-2 holders .... and the same 5 were approved while the others were denied ... well, the situation has not changed, but the percentage has ;) ;)

Anyway, I agree with Mr. Gold. If your investment is "substantial" and you employ people ... by any means, re-apply.