SUCCESSFUL E-2 VISA CASE
- Applicant: Ms. Yang
- Nationality: Taiwanese (Republic of China)
- Business: Import and Export of High-Quality Wine, Tea, Herbal Supplements
- Position: Chief Financial Officer and Chief Operating Officer
- Year Incorporated: 2016
- Number of Owners: 3, including Ms. Yang
- Investment Amount: $100,000
- 3 partners
- Lease was only $300/month
- Products require several licenses to be imported and sold, some of which are very strictly regulated and Ms. Yang was lacking, such as an alcohol license
- Ms. Yang had no experience in starting a business
- Ms. Yang had a previous U.S. Customs and Border Protection record for visiting boyfriend
- Ms. Yang only invested $100,000 but was earning a $50,000 salary
Ms. Yang* sought assistance from Tsang and Associates in order to help her apply for an E-2 treaty investor visa so that she would be able to expand her company into the United States. Her company was a leading import and export company for exclusive high-end products such as wines, all-natural teas, and herbal products directly from Asia to be sold in the United States, being one of the only importers of these fine products into the United States market. She truly believed coming to the U.S. would open up a reliably lucrative audience for the company. If she was unable to obtain the visa, she would miss out on an excellent opportunity to increase her client base. If Ms. Yang’s visa was approved, she would use her solid business credentials and extensive shipping experience to develop and direct operations in the United States. As such, Ms. Yang came to Tsang and Associates hoping that we could help produce a complete and thorough application. We filed our petition on July 12, 2016 and received approval on July 24, 2016.
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 Ms. Yang first came to us, we knew that we could form a strong petition. First of all, we noted that Ms. Yang was a Taiwanese national, which fulfilled the requirement that the national be of the treaty country. Initially, Ms. Yang only owned 50% of the company at the preference of the other partners, but at our attorney’s suggestion, we changed the partnership agreement and share certificate so that Ms. Yang owned 80% of the company. Even though owning 50% of the company would have been sufficient, the more the better for E-2 applications. This shift in ownership thus furthered the qualification for ownership by increasing her role, responsibility, and investment, while two other Taiwanese nationals shared the other 20%. We established that the company was completely under Taiwanese ownership, ultimately meeting the requirement of foreign ownership.
Real and Operating Enterprise
We also had to show that the company was a real and operating enterprise. This was a challenge because the company had not yet expanded into the United States. In order to tackle this requirement, we first assisted Ms. Yang in setting up her business in the United States. We acted as the company’s legal counsel and assisted in filing the company with the Secretary of State, acquiring a business license and seller permits, hiring a CPA to establish a business plan, negotiating contracts with suppliers, and facilitating the rental of an office. Through all this, we had access to signed contracts, the business plan, and photos of the office in order to establish that the company was not a “fictitious paper organization” nor an “idle passive speculative investment merely held for potential appreciation and value”.
Substantial, Irrevocable Investment
The next requirement we had to fulfill was that the investment was substantial and irrevocable due to USCIS fears that the investment is simply just a “risky undertaking.” Initially, Ms. Yang’s investment totaled approximately $100,000 which was a cause for concern; because she initially owned only 50% of the company. In addition, the lease for the office space was very cheap, at only $300/month. In order to tackle this, we showed that $84,756 in expenses had already been accumulated in order to purchase goods and services for the business, mainly for goods that cannot be sold without licenses, furthering its irrevocable nature. We demonstrated that the company had already entered into contracts with the top reputable companies that produce the highest quality items. We then incorporated the USCIS proportionality test in order to show that this amount of investment in conjunction with the high ownership interest was enough to be considered a substantial investment, that the business was not “speculative, but is, or soon will be a successful enterprise as the result of the exercise of sound business and financial judgment”.
More than Marginal Investment
In addition, we had to show that the investment made was “more than marginal.” According to federal regulations, an investment is considered to be more than marginal if it either provides income that exceeds what is necessary to support the individual and the family, or if it would make a significant economic contribution in the future. We responded to this in two capacities. First, we helped create the company’s five-year business plan that projected increased profit each year beginning in 2016 at $151,000 until in 2020 when gross profit reaches $755,000. Construction of such a plan was absolutely crucial given that Ms. Yang, without the proper licenses, could not sell her goods. We showed that this growth would provide healthy revenue that not only can support Ms. Yang, but also provide for future company expansion. Furthermore, we showed that Ms. Yang’s company would directly create at least 9 full time and contracted jobs over the course of the five year growth plan. We thus established that the investment in the business was indeed beyond “marginal”.
Ability to Develop and Direct the Business Enterprise
We then needed to prove that Ms. Yang would be moving to the United States to develop and direct her business, meaning that she would have a controlling interest in the company; she could not just be an ordinary skilled worker. Based on her prior experience in the marketing and finance fields, we were confident that she we could prove her directing interest. We demonstrated using her resume and career history that Ms. Yang indeed had previous employment with freight transportation companies and freight forwarders, allowing her to build and maintain strong rapports with overseas importers and shipping personnel. We further noted her experiences as the Vice President of several departments of several companies. We argued that these positions conditioned her for the marketing and business evaluations she would have to make as the CFO and COO of her company. We thus showed that Ms. Yang was indeed qualified to be the Chief Financial Officer and Chief Operating Officer of the business. We then detailed her prospective job duties in the United States, including managing the budgets and overseeing all financial aspects of the company, implementing the overall business strategy of the company, and being the driving force behind measures for the company as the leader of her team. We emphasized that Ms. Yang possessed a unique skill set that was vital to the success of the company, allowing her to be heavily involved in developing and directing the business.
Intent to Depart
Lastly, we showed that Ms. Yang possessed numerous, extensive social and financial ties in Taiwan, and she maintained various financial and property interests in Taiwan. We were able to provide financial statements giving evidence of her financial connections abroad and also provide real estate property agreements to further demonstrate her holdings in Taiwan. We also showed that she had a boyfriend who was present in Taiwan as additional proof of her intent to return, further establishing that she did not have any intention of overstaying her visa.
Once the paperwork for this case was completed, we further assisted Ms. Yang in preparing for the interview. Initially, Ms. Yang was incredibly fearful that the interview process would go poorly. She questioned if she could adequately explain the cheap office lease, her low investment amount, her lack of business licenses, and her lack of experience in business to the satisfaction of the immigration officer. She was worried that they would deem her not qualified for the E-2 visa. However, we spent numerous hours with her preparing her for the upcoming interview; we conducted practice interviews with her, helped her answer questions with the appropriate details, and built up her confidence. By the end of the preparation, Ms. Yang felt comfortable with her interview. Thankfully, Ms. Yang felt well prepared for each questions that the immigration officer asked her and she passed smoothly.
We filed the petition on July 12, 2016 and received approval on July 24, 2016.
*Name has been changed to protect client identity.