Israelis Soon to Secure E-2 Investor VisasPosted on Friday, October 26, 2012
On June 11, 2012, President Obama signed into law a treaty ratification bill that will enable Israeli nationals to apply for the nonimmigrant Treaty Investor visa known as E-2.
The E-2 visa was previously unavailable to Israelis because the two countries lacked a Treaty of Commerce and Navigation. The new treaty, aimed at strengthening commercial ties between the U.S. and Israel, will make Israel the 81st country whose citizens are eligible for an E-2 visa.
The E-2 classification allows a national of a treaty country to be admitted to the United States after investing a substantial amount of capital in a new or pre-existing U.S. business. An E-2 investor typically spends several years in the United States directing and developing the business. This activity creates jobs, has a positive impact on local economies, and allows investors to be closer to their U.S. businesses.
Businesses started in the U.S. by E-2 treaty investors run the gamut from technology companies to retail operators, manufacturers, restaurants, and a wide variety of service providers. In some cases, businesses that have already been established by the treaty investor in his or her home country use the E-2 visa option to open U.S. offices. In addition to the primary investor, certain employees of the business may also be eligible for E-2 visas.
To qualify for an E-2 visa, a treaty investor must meet three criteria: (1) be a national of a country with which the United States maintains a treaty of commerce and navigation; b) have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and c) seek to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial or executive position.
An investment is a treaty investor’s placing of capital (i.e. funds or other assets) at risk with the objective of generating a profit. Capital is at risk when it is subject to partial or total loss if the investment fails. Moreover, the treaty investor must document the source of the funds or capital invested, to prove that they were not obtained through illegal means.
When determining whether a given investment is substantial, USCIS looks at both the absolute size of the investment and the proportion it represents of the total cost of purchasing or establishing the business. The investment must be sufficient to show that the treaty investor is committed to the success of the business. Moreover, the investment must be large enough to convince USCIS that the investor is likely to succeed in developing and directing the business.
A bona fide enterprise is a real, active and operating business that produces and sells either goods or services in order to earn a profit. The business may not be marginal – that is, it must generate income beyond the amount required to support the treaty investor and his family. In addition, the applicant must show that the enterprise has met the legal requirements for doing business in the place where it is located.
Qualified treaty investors and employees are allowed a maximum initial stay of two years. Requests for extension of stay are granted in increments of up to two years each. A major benefit of the E-2 visas is that there is no maximum limit to the number of extensions an individual in this status may be granted. All E-2 visa holders, however, must maintain an intention to depart the United States when their status expires or is terminated, as the visa is considered to be of the nonimmigrant type.
Another important benefit of the E-2 program is that spouses of treaty investors may apply for employment authorization so that they can work legally while they are in the U.S. Another popular nonimmigrant visa option, the H-1B, does not allow spouses to work. Moreover, there is no cap on the number of E-2 visas issued each year as there is with the H-1B. Finally, an E-2 petition is eligible for premium (15-day) processing in the U.S., or may be filed directly with a U.S. embassy or consulate abroad.
The implementation of the EB-2 program with Israel will be effective when the terms and conditions of the final agreement are determined by the two countries. Hopefully, the U.S. will begin accepting applications from Israeli nationals within the next few months.