International Investors & Treaty Traders

(I-129, Petition for a Nonimmigrant Worker +
Appropriate Supplement
)


International trade is the life blood of many industries. As the global
market rapidly changes, international investors and treaty traders require
skilled, versatile immigration investor visa attorney who can provide
prudent and diverse immigration solutions while anticipating and
minimizing potential issues in the future.

The immigration attorney at the Law Office of James S. Sarpong, LLC
has successfully assisted investors from across the world.

Treaty Trader (E-1) Visas

Treaty trader visas (E-1 visas) are available to qualifying owners (and
employees) from treaty countries seeking to enter the United States to
carry on “substantial trade.” The immigration lawyer at the Law Office of
James S. Sarpong, LLC guides treaty traders through the myriad of
questions germane to satisfying the requirements for E-1 and Treaty
Investor (E-2) Visas.

Treaty Investor (E-2) Visas

An E-2 visa allows foreign investors from treaty countries to enter the
United States to manage their companies or investments. To obtain an E-
2 visa, qualifying owners must be a national of a treaty country, meet the
“substantial investment” requirement, and show evidence of a
commitment of funds for the enterprise in the United States.

The Law Office of James S. Sarpong, LLC offers treaty investors
insightful and comprehensive representation. We are experienced in
working with E-2 visa treaty investors of all types and sizes. In addition to
advising and counseling clients on the essential requirements to obtain
an E-2 visa, Law Office of James S. Sarpong, LLC also has the business
acumen and legal knowledge critical to proper management of
investments in the United States. For questions or additional information
on our services, contact our office.

Intra-Company Transferees

To ensure that key employees are where they need to be, when they
need to be there, you can rely on the experienced team of attorneys at
LOJSS, LCC. We work diligently to facilitate intra-company transfers for
foreign executives, managers, and other key personnel. For more
information on intra-company transfers, contact us.

LOJSS, LLC works with established companies, as well as
entrepreneurs, looking to relocate to the United States. We work closely
with international clients to facilitate intra-company transfers, obtain
employment creation visas, and employment- based- 5th preference
visas (EB-5s ). The focused practice of LOJSS, LLC is aimed at providing
their clients with the highest quality service, qualified representation, and
knowledgeable insight to expedite their clients’ needs. Contact LOJSS,
LLC to begin solving your investment-related needs.

Treaty Investor (E2 Visa) 101

Section 101(a)(15)(E) of the US Immigration and Nationality Act provides
for visa status for nationals of countries that maintain an appropriate
treaty of commerce and navigation with the United States or that is
considered to be a treaty country under US law. The applicant must be
coming to the United Sates to carry on substantial trade or to develop and
direct the operations of an enterprise in which the national has invested,
or is actively in the process of investing, a substantial amount of capital.

Treaty Trader and Investor visas are nonimmigrant categories. They do
not confer permanent residence in the US nor do they lead to US
citizenship, although they permit the applicant and qualified family
members to live in the US for an extended period. For permanent
residence in the United States, there is a separate program based on
investment.

To qualify as a Treaty Investor (E-2):

  • 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 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.
  • The investment must not be marginal. It must generate
    significantly more income than needed 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. For the purpose of
    measuring the investment, loans secured with the assets of the
    investment enterprise are not counted.
  • The investor must be coming to the US to develop and direct the
    enterprise. If applicants are not the principal investors, they must
    be employed as a supervisor, executive, or as the possessor of
    highly specialized skills.

QUESTIONS AND ANSWERS

Must the trading company exist and/or the investment have been
made before the visa can be issued?
Trade must already be
established at the time of visa application. Investments, however, may be
prospective, provided that the funds are irrevocably committed to the
investment, contingent only upon the issuance of the visa. Investment
funds may come from any country, including the United States, as long
as they are controlled by the investor applicant.

What is substantial trade? Substantial trade contemplates a continuous
flow of trade items between the US and the treaty country.  This means
numerous transactions rather than a single transaction regardless of
monetary value.

What is a substantial amount of capital? There is no fixed amount
which is considered "substantial." A substantial amount of capital
constitutes that amount which is ample to ensure the investor’s financial
commitment to the successful operation of the enterprise as measured
by the proportionality test. The proportionality test compares the total
amount invested in the enterprise with the cost of establishing a viable
enterprise of the nature contemplated or the amount of capital needed to
purchase an existing enterprise.

Such comparison constitutes the percentage of the treaty applicant’s
investment in the enterprise. That percentage must compare favorably in
the fashion of an inverted sliding scale starting with a high percentage of
investment for a lower cost enterprise. The percentage of investment
decreases at a gradual rate as the cost of the business increases. An
amount of capital invested in an enterprise is merely presumed to be
substantial when it meets or exceeds the percentage figures given in the
following examples (amounts shown are in US dollars):

  • 75% investment in an enterprise costing no more than $500,000
    (if the cost of the enterprise is substantially lower than $500,000,
    85-90%, or even 100% investment may be required).
  • 50% investment in an enterprise costing more than $500,000 but
    no more than $3,000,000.
  • 30% investment in any enterprise costing more than $3,000,000.

A multi-million dollar investment by a large foreign corporation is
normally considered substantial, regardless of the examples given
above.

The investment must do more than merely yield a return capable of
supporting the investor and family. A marginal enterprise is an enterprise
which does not have the capacity to generate significantly more than
enough income to provide a living for the investor, family and other alien
employees.

Are joint ventures permitted? Yes, provided that the business or
individual investor applying for the visa is in a position to "develop and
direct" the enterprise. The applicant is in such a position by controlling
the enterprise through ownership of at least 50% of the business,
possessing operational control through a marginal position or other
corporate device, or by other means showing the applicant controls the
enterprise.

How long may the Treaty Trader or Investor stay in the US? The
applicant must have the intention of departing the US upon conclusion of
the commercial activities. Nevertheless, holders of E-visas may reside in
the US as long as they continue to meet E-visa qualifications.

"Essential employees" may remain only as long as their skills are
required to operate the business, and only as long as the owner can
show either that US workers cannot be trained to duplicate the skills or
that the owner is making reasonable efforts to train US workers as
replacements.

On initial entry, immigration officials normally authorize a stay of up to one
year in the US, with extensions generally available for as long as the E-
visa holder and family maintain their E-visa status.

Is a visa available to the applicant’s wife and children? Yes. Spouses
and children under age 21 qualify for derivative E-visas based on the
principal applicant’s qualification. It is not necessary that they hold the
nationality of the principal applicant. However, when the surnames of a
spouse or children (as appearing on their passports) differ from that of
the principal applicant, copies of marriage certificates, birth certificates,
or other legal documentation must be submitted to establish the
relationship. De-facto spouses and fiance(e)s do not qualify for derivative
status. Dependent E-visa holders are allowed to work in the United
States.

Filing the I-129 Petition:

USCIS Form I-129 consists of a basic petition and different supplements
that apply to the various visa categories. In order to petition for a
temporary worker, the prospective employer or agent must file Form I-
129, Petition for Nonimmigrant Worker, and the appropriate supplement
with the U.S. Citizenship and Immigration Services (USCIS)
accompanied by the required payment, and initial evidence or
documentation.

Once the petition is approved, the employer or agent is sent a Notice of
Approval, Form I-797. Approval of a petition does not guarantee visa
issuance to an applicant. Applicants must also establish that they are
admissible to the U.S. under provisions of the Immigration and
Nationality Act (INA).

Applying for the Visa:

If the prospective worker (beneficiary) is outside of the country, he must
apply for a visa. After the USCIS has approved the I-129 and sent notice
to the consulate in the beneficiary’s country, the beneficiary must file a
visa application with the consulate. Some aliens may be visa exempt. In
those cases, the I-129 approval notice is sent to the port of entry (POE)
where the beneficiary intends to apply for admission.

If the beneficiary is already in the U.S. and is changing from one
nonimmigrant status to another, a visa is not required. However, a visa
may be required if the beneficiary subsequently leaves the U.S. and
wishes to re-enter.

Entry into the U.S.

Applicants should be aware that a visa does not guarantee entry into the
United States. The U.S. Customs and Border Protection (CBP) has
authority to deny admission at the port of entry to any applicant who is
inadmissible under INA, even if the applicant has a visa. Also, the CBP,
not the consular officer, determines the period for which the bearer of a
temporary work visa is authorized to remain in the United States. At the
port of entry, CBP officials issue Form I-94, Record of Arrival-Departure,
which notes the length of stay permitted. The decision to grant or deny a
request for extension of stay, however, is made solely by the USCIS.

When to file:

Petitions should be filed as soon as possible, but no more than 6
months before the proposed employment will begin or the extension of
stay is required. If the petition is not submitted at least 45 days before the
employment will begin, petition processing and subsequent visa
issuance may not be completed before the alien's services are required
or previous employment authorization ends.

FEES

There are two parts to the non-immigrant visa fee: the application fee and
the issuance fee.

Application Fee: All applicants, regardless of nationality and visa
category, must pay a fee to process the application. This fee is non-
refundable and is in addition to any other fees that apply.

Issuance Fee: Issuance fees vary by nationality and visa category. The
issuance fee is in addition to the application fee.

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, Coratia, Czechoslovakia**, Denmark*, Egypt**,
Estonia*, Ethiopia, Finland, France, Germany, Greece*, Grenada**,
Honduras, Iran, Ireland*, Israel*, Italy, Japan, Kazakstan**, Korea,
Kyrgyzstan**, Latvia*, Liberia, Luxembourg, Mexico, Modova**, Morocco**,
Netherlands, Norway, Oman, Pakistan, Panama**, Paraguay, Phillipines,
Poland**, Romania**, Senegal**, Slovak Republic**, Slovenia, Spain, Sri
Lanka**, Surinam, Sweden, Switzerland, Taiwan, Thailand, Togo,
Tunisia**, Turkey, United Kingdom, Yugoslavia, Zaire**.

* indicates country is eligible only for E-1 visa.
** indicates country is eligible only for E-2 visa.
Denver Colorado Investor E Visas Lawyer, Aurora
Boulder L Attorney, James S Sarpong, handles all US
immigration matters - Investor E Visas, E-1, E-2,
Austrailian, Canadian, Treaty Trade, Intra-Company
transfers, etc. Browse site for more details.

Aurora Boulder Denver Colorado Family Based
Immigration Attorney / Employment Based Immigration
Lawyer. Aurora Boulder Denver Removal Deportation
Attorney / Lawyer. Adams County, Arapahoe County,
Boulder County, Denver County, Douglas County.
Law Office of James S. Sarpong, LLC
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Disclaimer: The information you obtain at this site
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The Law Office of James
S. Sarpong, LLC is a
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US Immigration Law Firm
that has several office
locations throughout the
Front Range and the
Denver Metro Area, and
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