SUCCESSFUL E-2 VISA CASE

  • Applicant: Mr. Hung
  • Nationality: Taiwanese
  • Business: Marketing and Distribution of Electronic Photo, Video, and Athletic Devices
  • Position: Principal Investor/ General Manager  
  • Year Incorporated: 2005
  •  Number of Employees: 2
  • Investment Amount: $200,000
  •  Challenges:
    • Multiple levels of ownership, making it difficult to show that Mr. Hung owned half of the company   
    • Short term negative projections financially

Mr. Hung* came to Tsang and Associates hoping that we would be able to assist him in forming an E-2 visa application as a treaty investor for his company. His company, focused on marketing and distributing consumer electronic goods, had expanded product lines for retailers, E-tailers, and national accounts, selling goods such as cameras, DVD/TV portables, scanners, and converters. He hoped that through a plunge into the U.S. marketplace, he would be able to build up a solid and substantial consumer base and facilitate even greater growth and success. As such, we helped him file an E-2 Treaty Investor visa application on September 11, 2014 and received approval within 2 days.

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

Nationality of Country

When Mr. Hung came to us at Tsang and Associates, we believed strongly in his case. First off, Mr. Hung was a Taiwanese national, which qualified him as from a treaty country. However, the company was registered in the United States and was completely owned by another company, a company majority owned by Taiwanese nationals. Mr. Hung invested in the parent company and was given a share of the controlled company. We proved through the stock transfer ledger, that Mr. Hung was transferred 51% of the U.S. company’s controlling shares by the controlling company, thus making Mr. Hung 51% owner of the company; this figure satisfied the requirement of ownership interest for treaty country ownership.

Real and Operating Enterprise

We also had to show that the corporation was a bona fide U.S. Corporation. In order to do so, we highlighted that the company was founded in 2005 and had been engaging in successful business within that period of time. We provided the company’s previous tax returns and copies of various purchases and invoices related to the company, fully establishing that the company was indeed doing business.

Substantial and Irrevocable Investment

We also were required to prove that the investment made by Mr. Hung was substantial and irrevocable due to USCIS fears that the investment is simply just a “risky undertaking”. As such, we demonstrated that Mr. Hung made a substantial capital investment of $200,000 into the company derived from his personal funds. In using the federally regulated proportionality test that related the amount invested with the percentage owned, we indicated that as Mr. Hung owned 51% of the company and invested $200,000 that qualified as a substantial investment. We showed through the company’s five year plan, that it planned to aggressively expand its area of operations and product portfolio stemming from this initial investment. Thus we were able to demonstrate that Mr. Hung was “unquestionably committed to the success of the business”.

More than Marginal Investment

Moreover beyond being substantial, we showed that the investment was “more than marginal”. According to federal regulations, an investment is considered to be more than marginal in the cases that it either provides income that exceeds what is necessary to support the individual and the family or that it would make a significant economic contribution in the future. We addressed this in both ways. In tackling the first qualification, difficulty arose because according to the company’s projections, they expected to have negative profit years for the following two years. Assuming negative profit, the revenue generated would not be sufficient to be considered more than marginal to sustain Mr. Hung. However despite this, we continually emphasized the huge profits to be made beyond the first couple years, numbers that approached $2 million in profits. We even hired a Certified Public Accountant in order to prove that the investment would assure a good return on investment. In addition, we showed that the investment directly created at least 3 full time jobs and was expected to create 16 additional jobs within the next five years, thereby qualifying the investment further as being “more than marginal.”

Ability to Develop and Direct the Business Enterprise

Furthermore, we had to prove that Mr. Hung was coming to the U.S. to develop and direct the enterprise, meaning that he would have to have a controlling interest in the company. According to USCIS regulation, ordinary skilled and unskilled workers do not qualify. Thus we had to demonstrate that Mr. Hung, while serving as the principal investor and Chairman of the company, would be instrumental in directing the business’s overall growth strategy and maintaining effective client relations with business associates. We detailed Mr. Hung’s extensive experience within the business realm and electronics industry, as he had been an integral part of several other ventures and developments. We then explained his proposed duties in the United States, which included overseeing all financial aspects of the company’s operations, working directly with outside accounting professionals, being engaged in the development of new products, and being responsible for directing and managing the sales and marketing aspects of operations.

Intent to Depart

Lastly, we stressed that Mr. Hung had an unequivocal intent to return to Taiwan following his E-2 status. We provided evidence in the form of real estate holdings and financial statements demonstrating his ties to Taiwan that helped to establish his social and financial connections abroad.

Interview Preparation

Following our work with the petition, we also helped prepare Mr. Hung for the upcoming interview. At first, Mr. Hung was extremely concerned that he would do poorly on the interview. He was not sure if he could satisfactorily explain his stake in the ownership of the U.S. company. Even greater concern for him was the fact that the company had negative projections in terms of profit in the short term; he feared that the immigration officer would hone in on this detail and make this a justification for denial. However after much preparation with our attorney, Mr. Hung felt much more comfortable. Hours of practice interviews and anticipating questions and answers allowed him to believe that he would perform well. Indeed, Mr. Hung ended up feeling confident in every answer that he gave the immigration officer and he passed.

Outcome

We submitted the petition on September 11, 2014 and received approval within 2 days.

*Name has been changed to protect client identity.