2021 AILA Conference Day 4 Session 2: E-1 and E-2 Visa Nuances

Hi everyone, this is Joseph. Welcome to day four session two, “The Consular Nuances of E1 and E2.” AILA has invited some of the best immigration attorneys on this subject matter. There’s so many useful things they shared. I’m going to start out by talking about all the key takeaways and then broaden out to some of the bigger topics that they discussed. Let’s get to it.

[Tsang Intro Splash]

[0:22] I thought the LPRs being overseas over one year was going to be a big panel on a Saturday morning; this one had over 300 people listening in live. This is how important the E1, E2 is overseas. There’s so many things that they shared. Let’s get to it.

Big news in the investment treaty trader world. Bolivia, Ecuador, and Iran are dropped from our partners and Israel and New Zealand were added. This is great news for all the people who hold citizenship to the countries who have been added because for a small investment they can open up shop in the US and be able to bring their entire family over and get a work visa and they can work here. This is huge because a lot of people they don’t want a green card in the US. They don’t want to be a US citizen but they still want to be here temporarily. Some for five years, some for 20, some for 40. It doesn’t matter but they want to be here.

We can see from later on in the discussion a lot of panelists talked about which consulates are open, which ones ones are not, focusing on the E2. And you can see the countries that have a lot of E2 visas, they have been pretty good at ramping up and getting people back here because that’s predominantly what a lot of people overseas want. They want the treaty trader visa. They want their they need their E2 to be able to be here with their family. They have your children here and then they can go back to their home country and then doing the investment to get that visa is really all they want.

[1:45] Two more big updates. France has unfortunately reduced their five year E2 visa down to 18 months. That is a huge difference before when you apply you get a visa for five years. Now it’s only 18 months. That’s almost on par with like Cambodia and Thailand and certain other places. It’s extremely limited. I don’t know why but that is the case. Also Australia’s filing fee is up to $3,000 for the E visa. That’s crazy. Other countries is only like $100 or $200. I don’t know what’s going on but that is a hefty fee to pay just for the E visa.

Lastly let’s end on a good note. The FAM [Foreign Affairs Manual] makes it extremely clear that a lease agreement for your business is not a requirement when you apply for a E visa. Presumably because a lot of consular officers have been denying cases or requesting lease agreements that when they don’t have it it gets heavily challenged. Well, now it’s very clear that it is not a requirement. It was never a requirement in first place and now they make it extra clear. However of course any good attorney would recommend just get a lease agreement even if you are renting from yourself. Even if your business is renting from your own home still have a lease agreement. It’s just good practice.

[3:04] Alright, so those are the key updates at the panel and suspension. Now there’s other very important things that we’re not going to discuss in this video such as all the key numbers of the visa being issued, how many backlogs are in each consulate. They had a lot of graphs. They had a lot of percentages. All very interesting. If you’re interested in that kind of stuff you should totally download it from ALA Agora.

[3:24] Another thing is since this is a more… let’s just… how should we put it…? A more advanced E1 E2 seminar, they went in depth talking about what are some of the specific requirements for E1 and E2. That we’re also not going to cover in this video but they talked about what is this sufficient fund. How do you get… how do you prove source of fund? Do you need… how do you prove it’s real and operating? How much money should you invest? They also talked a lot about that. Some of them being as low as $40,000. In our recent cases, $30,000 being the lowest amount you invest in your company and you spend in order to get the E1/E2 visa. So we’re not going to talk about all of that.

[4:03] What we’re going to focus on is this one contentious that I found particularly interesting. So here’s the situation. You already have an E1/E2 visa and you’re comfortably here in the United States. Do you file your extension here or do you go back to the consulate and get another E1/E2 visa from where you originally got it? The panelists seem to universally agree that if you do your extension here and then you go back to the consulate to get the visa, well they’re going to treat your case more harshly and that is a drastic difference compared to my experience and a lot of the E2/E1 attorneys that I work with. And I have a couple of theories as to why.

So this is the advice I give to my clients who are here. They’re comfortable here. They don’t want to travel so they filed an extension with USCIS. I always tell them you need to prepare a lot more documentation to explain why because they don’t get a chance to interview you. So my clients prepare everything. They’re probably triple the amount of stuff that they normally do at the embassy level. Then we submit it. USCIS treat it like an L1 or an H1 or very complicated case but then eventually approves it. Even the challenge is source of fund. But anyways eventually it gets resolved then they get their status approved. Then eventually the client needs to go back to the embassy. When they go back to the embassy, we bring the approval from USCIS. but I always tell them you need to do a full re-file with the consulate. You cannot just take the approval notice and go back and say, “hey look USCIS already approved it. Now you need to approve it.”

[5:35] Why do I think that is the case? Because… E2 is one of the small, small… few visas that they have the authority to issue without USCIS approval. So L1, H, any other visa. You almost need the USCIS to approve it first including K visas. Once you get the approval then they kind of like a secondary double check. “Oh yes you do qualify. Yes here is your visa.” 

But E visas, it’s completely in their domain. You can directly apply. They can issue it. It doesn’t have to be reviewed by USCIS. It’s kind of like a mom and dad domain kind of a situation. Why did you ask mom when this is something you typically ask dad? Is there something wrong when you ask mom? But take that analogy to heart. So don’t just go to dad and say “Mom already said okay. I get to go. give me your keys.”

If you do with that with that attitude then they’re going to be pretty pissed off. So don’t go with that attitude. Say “I need to go to prom. I need to do all the stuff. I need to borrow the car keys. These are all the reasons why and why you qualify. Here’s my business plan…” You know you explain that to dad. But in the end you say “by the way mom already said okay.”

[6:44] So that’s the idea and that’s how I always advise my clients. If they want to extend the status here in the US, they need to be prepared to do it again and do it with more depth when they go to the consulate. Well why did you even ask your mom in the first place? Well you have to explain why they had to file in the US. They didn’t want to go back at that time. But that’s all.

And in my experience, when it’s done that way, it’s actually easier. The consulate officer smiles. They understand and they approve it. But again if clients are treating like “oh USCIS already approved it” and then directly smashing that in the consular’s face then they might have a difficult time. But that’s my opinion. I don’t know who knows these things.

[7:24] The next thing I found particularly interesting on what the panelists said was which posts were actually issuing E2. So if you haven’t attended the Department of State Open Forum or you haven’t watched my video, here’s one thing to take away. Business visas such as the E1/E2 is super low on the priority, right? It is one of the least important visas that they’re scheduling. And right now, there’s so few slots being available for them to meet. And so, all the urgent reasons, all the family reasons, adoption, those are all taking up all the slots at all the consulates around the world. Most consulates don’t even schedule E2 visas until much later. The London Embassy completely closed it for until April of 2022. That’s how little spots are available and business visas are one of the lowest ones on the list.

Now, with that being said there are exceptions. It’s not surprising that the number one spot and the number two spot belongs to Tokyo and Osaka. It’s so interesting that your national identity and so many things plays into how immigration law is actually practiced, right? So a lot of the immigration attorneys I know that practice out of Japan, they predominantly do E1 and E2’s because there’s such a huge demand. And E1, E2… E3, E3, E4, E5 not really, right? So people in Japan, they’re not doing these high investment green card applications or or extraordinary ability green card applications. Even when they’re executive transferees, the L1s, they come over, they don’t do the E1C and they go back. They don’t want the US green card. And again there’s a lot of reasons why; because once they get the US green card then they have to forfeit a lot of things in Japan so they don’t want to do that and they have such a strong national identity, so E1/E2 serves all their purpose. So in the whole world the top two spots and top two posts belong to Japan and that’s that’s interesting.

[9:17] And one thing to know is that in their posts they’re almost back to the pre-pandemic era. So a lot of the posts, there… they have a super long backlog of people who are trying to apply E1/E2. They can’t schedule appointment and it’s already been delayed. What they… what… what people in Japan… what they’re doing is they’re doing more E1/E2’s than they used to, to try to catch up with the backlog. And that makes a lot of sense. But so far very few other consulates are doing that. But it’s for understandable reasons because spots are limited and they have to give it for urgent travel reasons.

[9:47] Now if you fall under one of these unfortunate clients who have already invested in a company in the US. You’ve poured in your money. You’re ready to get your E1 or E2 visa, but because of the backlog… because of the consulate closure, you just can’t come in, there are work arounds. 

So one thing you can do is you can file with USCIS first. You get the USCIS approval. Then you take that approval and you directly fly to LAX I know for for sure will work. And they will review your document and you come in as a tourist B1/B2 but you have your USCIS approval for E2. They look at it and they’ll stamp you and allow you to come in as a E2, right? And so that there’s some work around to this CBP again is stepping up to the challenge because the consulate are closed. There’s too few openings to give these E2 visas.

[10:41] There’s a lot of other things that the panelists share that are really really good including answering specific questions about people’s E2 applications that are extra complex. If you’re interested, please go ahead and download it from AILA Agora or AILA University or wherever you find your podcast. I hope I keep on saying that and AILA University would make it into a podcast. Thank you, this is Joseph. If you like what you see please hit that like button and smash that subscribe button. Take care. Bye-bye.