SUCCESSFUL E-2 VISA CASE

  • Applicant: Mr. Chen
  • Nationality: Taiwan (Republic of China)
  • Industry: Anti-dust mite bedding and encasement
  • Position: President and Chief Executive Officer/ Principal Investor
  • Year Incorporated: 2015
  • Number of Employees: 2 including Mr. Chen
  • Number of Dependents: 2
  • Investment Amount: Nearly $400,000
  • Challenges:
    • No sales contracts
    • Company was a marketing agency
    • Prospective sales were low for the next few years

Mr. Chen* came to Tsang and Associates hoping to apply for an E-2 visa as a treaty investor for his newly formed California based company, Corporation. His company was focused on providing anti-dust mite bedding and encasement through e-commerce, retailers, and wholesalers; the business sold pillows, pillow cases, sheets, and covers helping people who suffered from dust mite allergies. As the principal investor and founder of Corporation, Mr. Chen felt it absolutely crucial that he facilitate the expansion of Corporation personally. Otherwise, the overall direction of his company may suffer and he would miss out on a lucrative chapter in his company’s history with its potentially vast expansion into the United States. As such, Mr. Chen asked us here at Tsang and Associates to assist in the application process. The E-2 visa application was filed on December 1, 2015 and Mr. Chen received his visa on December 15, 2015.

Keys to Success

In order for one to be successful in their E-2 visa application, there are several requirements that are necessary according to United States Citizenship and Immigration Services regulations:

  1. The treaty investor must possess the nationality of the treaty country
  2. The corporation must be a bona fide U.S. Corporation, a real operating enterprise and   not a fictitious paper organization
  3. Capital invested must be substantial and irrevocably committed to the enterprise
  4. The investment cannot be marginal
  5. Investor must have ability to develop and direct the enterprise
  6. Investor must have intent to depart following the end of E-2 status

National of Treaty Country


When Mr. Chen first came to us, we believed strongly that he would be able to have his E-2 visa approved. Mr. Chen was a Taiwanese national and thus fulfilled the first requirement, as Taiwan has been a treaty country since 1948. Furthermore, we proved through Corporation’s share certificates and share ledger that Mr. Chen was the owner of 100,000 shares of stock out of a possible 100,000 shares issued, indicating that Mr. Chen owned 100% of the company and thus satisfying the threshold for treaty country ownership.

Real Operating Enterprise

While this first point was easy to prove, the remaining requirements were more difficult. In order to help tremendously, we created a business plan for Corporation; this business plan consisted of 5 year profit and loss projections, start-up costs, and organizational structures for the company. Using this business plan in addition to other pieces of evidence, we demonstrated that Corporation was indeed a real and active operating enterprise; we proved this through photos of the office location, various purchase and sales invoices, and contracts with commercial suppliers, among much more, fully establishing the bona fide nature of Corporation.

Substantial and Irrevocable Investment

Another issue we had to take care of was showing that Mr. Chen’s investment into Corporation was substantial and irrevocable. We showed that the company was established on August 12, 2015 and since then, after compiling checks, bank statements, and wire transfers, Mr. Chen had invested a total of more than $399,982 into the advancement of Corporation. We highlighted the fact that these funds were from Mr. Chen’s personal funds in Taiwan and that this was substantial and irrevocable capital that had already been used in order to support Mr. Chen’s ability to continue to develop and direct the enterprise. Even though there is no clear definition for substantial, this is a key requirement set forth by USCIS for the purpose of ensuring that the investor is unquestionably committed to the success of the business. As a guideline, we adopted the foreign affairs regulated “proportionality test” which connected the cost of establishing the business with the percentage of actual investment by the investor. We proved that since Mr. Chen had invested 100% of the investment at $399,982 this was a substantial investment made from Mr. Chen’s personal funds.

More than Marginal Investment

Another key issue was ensuring that the investment made is not marginal, in that it would provide enough income to support the applicant and his family. We had to prove that either Mr. Chen’s income from the investment would be enough to provide for his family or that it would result in significant economic contributions such as creating jobs. This was challenging on the surface due to Corporation’s new existence, existence of dependents, and the fact that only 2 employees were there including the investor. However, we were able to prove both qualifications. First, we hired a Certified Public Accountant to perform a careful analysis to assure a good return on investment then submitted bank statements indicating that Corporation was in a solid financial position. In addition, utilizing the business plan that we helped create and also pointing to the organizational chart and projected employee hiring plan, we demonstrated that Corporation would create at least 3 jobs in the next year and an additional 9 jobs by 2020, with likelihood of even more expansion and growth. Thus we proved that with its sound financial picture and continued growth, the investment made would not be marginal at all.

Ability to Develop and Direct the Business Enterprise

We also had to prove that Mr. Chen intended to develop and direct Corporation. Per USCIS regulations, ordinary skilled and unskilled qualifications do not qualify. Thus to combat this, we first noted that Mr. Chen was indeed the principal investor who intended to serve as President and CEO of Corporation. We further detailed his intended duties and roles should his visa be approved. We showed that he would be critical in directing the business’s growth strategy and maintaining effective client relations in both Taiwan and in the United States. We established that Mr. Chen would be directing Corporation’s operations, sales and marketing strategies, and foreign relationships. We showed that as the principal investor in Corporation, he would serve as the company’s senior financial officer as well, incorporating his extensive background into helping Corporation maximize investments and productivity. We furthered Mr. Chen’s qualifications for these duties by detailing his education and extensive professional experience in the industry.

Intent to Depart

Lastly, we stressed that Mr. Chen did not have any intention to overstay his visa. We demonstrated that Mr. Chen still had significant family ties to Taiwan and that he and his family still possessed a multitude of properties and land as well as plenty of cash and assets at various financial institutions. Thus, we were able to prove that Mr. Chen would not exceed his visa duration.

Outcome

Our client’s E-2 treaty investor visa was approved on December 15, 2015. We further assisted both him and his wife in their visa interview preparations.

*Name has been changed to protect client identity.