Meeting E-2 Treaty Investor Visa Requirements

Applicant: Ms. Yin
Country/Region: Taiwan, 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
Challenges:

• 3 partners
• Lease was only $300/month
• Products require several strictly regulated licenses that Ms. Yin did not have, including an alcohol license
• Ms. Yin had no experience in starting a business
• Ms. Yin had a previous U.S. Customs and Border Protection record for visiting boyfriend
• Ms. Yin only invested $100,000 but was earning a $50,000 salary

BACKGROUND

Ms. Yin sought our assistance to help her apply for an E-2 treaty investor visa. 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 U.S. 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 an excellent opportunity to increase her client base. If Ms. Yin’s visa was approved, she would use her solid business credentials and extensive shipping experience to develop and direct operations in the U.S. As such, Ms. Yin came to Tsang and Associates hoping that we could help produce a complete and thorough application.

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:

National of Treaty Country

First of all, we noted that Ms. Yin was a Taiwanese national, which fulfilled the requirement that the national be of the treaty country. Initially, Ms. Yin 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. Yin 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. Yin 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”. 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.” 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. Yin, without the proper licenses, could not sell her goods. We showed that this growth would provide healthy revenue that not only can support Ms. Yin, but also provide for future company expansion. Furthermore, we showed that Ms. Yin’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. Yin would be moving to the United States to develop and direct her business. We demonstrated using her resume and career history that Ms. Yin 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 then detailed her prospective job duties in the United States. We emphasized that Ms. Yin 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. Yin possessed numerous, extensive social and financial ties in Taiwan, and she maintained various financial and property interests 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.

OUTCOME

We filed the petition on July 12, 2016 and received approval on July 24, 2016.

*Name has been changed to protect client identity