Many individuals suffered United States immigration consequences due to their reliance on erroneous information found on the internet. Whilst much information found on the internet may be accurate, we have become aware of an abundance of visa myths arising out of incorrect information that is perpetuated across the internet on sites ranging from chat boards to government information pages.
Unfortunately, these visa myths often lead to consequences of varying degrees, including the following: a.) An individual may forego applying for a specific visa category that would otherwise allow him to establish a profitable business in the United States, due to a mistaken believe that he is ineligible for the category; or b.) An individual might consider that she is authorized to carry on business activities in the United States that are, in fact, prohibited by law, leading to refusals of entry, visa denials, or worse.
The fact of the matter is that United States immigration law is rarely, if ever, straightforward — and it is important to distinguish between the reality and the myths. In this article, therefore, we address the ten (10) visa myths most commonly brought to our attention by our clients, in the hopes of helping the public to avoid costly missteps.
Myths Associated with the E2 Treaty Investor Category
Myth 1: “I need to invest $250,000 USD in the United States to be eligible for an E2 Treaty Investor Visa.”
The Reality: Not necessarily. The US Department of State (“DOS”), the United States government agency that handles E-2 visa applications does not set a minimum investment figure. Instead, the DOS simply states that the investment must be substantial. The dollar figure required for a substantial investment depends on the nature of the business to be started or to be purchased. Your investment must represent a substantial proportion of the total value of the business to be purchased or it must be sufficient to start up a profitable new business.
Our firm has handled successful applications for applicants investing as little as $50,000 USD, when this was the full amount that was required to start up the business to the point of operation.
Myth 2: “I can apply for an E2 visa to allow me to travel to the United States to make my investment.”
The Reality: This is not correct. Before you legally can apply for an E2 visa, the investment of your money must be completed, and commercially at risk. Certain regulations do allow travellers to visit the USA on the Visa Waiver Program or a Visitor Visa for the purpose of making an investment, if otherwise eligible. However, this must be handled carefully to ensure that the activities you will do are all authorized under the regulations. For example, you will not be eligible to actively manage your investment, or otherwise work in your business, until you have received the E-2 visa. The officer at the port of entry must be satisfied that you will only be engaged in authorized activities or you may be refused entry or administratively deported.
Our firm often works with investors at this initial stage of the investment. We offer our services to qualifying investors to review the proposed investment activities in the United States and to provide documents for presentation at the port of entry in support of the investor’s proposed activities in the United States.
Myth 3: “I can retire on the E-2 visa.”
The Reality: This is not correct. The E-2 Treaty Investor visa is not a retirement visa. It is intended for active investments and is only issued to investors entering the USA to actively develop and direct the investment.
The United States does not currently offer a retirement visa. You will need to secure Legal Permanent Residency in the USA before being able to retire there on a permanent basis. Given that the E-2 visa is strictly a non-immigrant visa, any Legal Permanent Residency petition or application must be handled carefully to avoid jeopardizing your E-2 visa status.
Myths Associated with Business Travellers
Myth 4: “I need to travel to the United States to do some work for my employer. I am not employed by or being paid by a United States Company and I am only staying for a short period of time, so I can travel on the Visa Waiver Program.”
The Reality: The Visa Waiver Program does not authorize productive work, regardless of where the company that you work for is located, or even whether or not you are paid for your work. This same rule also applies to individuals holding a standard B-1 Business Visitor visa. The business activities allowed under the Visa Waiver Program and standard B-1 Business Visitor visa include, but are not limited to, attendance at business meetings, conferences, seminars and exhibitions. However, conducting leadership and management training seminars, or other training events, is not authorized on the Visa Waiver Program.
It is important to be entirely clear on whether your business activities are authorized under the Visa Waiver Program. If you perform unauthorized work in the United States, you may be removed from the United States or refused entry to the United States on a later trip. You may then be unable to travel to the United States on the Visa Waiver Program and may face problems in securing a B-1 Business Visitor’s visa in the future.
Within the B-1 visa regulations there are special subcategories of B-1 visas that, when issued, allow different types of productive work. The most common of these subcategories is a Special Business Concession (also known as B1 in lieu of H1) that allows qualifying individuals to perform productive work in the United States on behalf of a foreign employer. Individuals generally find applications for the Special Business Concession to be less onerous than other visa categories as the application is presented directly to the United States Embassy or Consulate abroad. However, the presented application must clearly demonstrate the applicant’s eligibility and must be presented within the frequently changing procedural requirements of the DOS. We recommend that you consult with a qualified immigration attorney if you or your employer wish to pursue this option, given that a failed visa application, even through a simple misstep, may also render the applicant ineligible to travel on the Visa Waiver Program ever again.
Myths Associated with L-1 Intracompany Transfers
Myth 5: “The United States company must be trading for at least one (1) year before my foreign employer can transfer me to it on an L1 visa.”
The Reality: This is not the case under the special L-1 “New Office” regulations. The “New Office” regulations allow an individual employed by an affiliated company abroad in a managerial, executive, or specialized knowledge capacity to be transferred to a brand new United States company to commence the operations of the company.
The L-1 visa under the “New Office” regulations will be issued for up to one (1) year initially, and the United States company must demonstrate in its petition that the transferee will be in a position to step away from any duties in the set-up of the company that are not strictly managerial, executive, or that do not require specialized knowledge, by the end of year one (1).
A reverse version of this myth suggests that the transfer can occur even before the establishment of the United States company. In actuality, whilst the L-1 visa may be issued to a transferee commencing operations, USCIS must be satisfied in reviewing the visa petition that there is an already-established United States entity prepared to receive the transferee. To facilitate the visa process, our law firm often assists foreign companies in this initial establishment of the United States, which we handle in conjunction with the preparation of the visa petition to avoid unnecessary delays.
Myth 6: “I am paid as an independent contractor, not as an employee, so I am not eligible to transfer to the affiliated United States company.”
The Reality: You may still be eligible. Contractors that work exclusively for the foreign company, but are paid as contractors simply for payroll reasons, may still be transferred to the affiliated United States company on an L-1 visa, if otherwise eligible. During our initial consultation with you or the contracting company, we would discuss more about your role to ensure that it qualifies. Also, if you do not meet the requirements for the L-1 visa, we can discuss other potential options.