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David Katona
Although there are many types oftemporary work visas that may allow one to work in the United States,the most appropriate visa for UK nationals looking to invest in a newor existing business in the US is typically the E-1 or E-2 visa.
The E-1 visa is available in situationswhere a UK national or business invests in a new or existing USentity that engages in substantial international trade of goods orservices with the UK. The UK national (or another UK national orbusiness) must purchase at least 50% of the shares of the US company,and the volume of trade between the UK and US must be more than 50%of the traders total international trade volume. Furthermore, thetrade must be substantial, regular and continuous (ie, cannot bebased on one trade transaction). If all these conditions are met,the UK investor can obtain an E-1 visa if s/he directs the trade. The US company can also hire any UK national (ie, who is not theinvestor himself) who will assume a supervisory or essential skillsposition at the company.
The E-2 visa is appropriate when a UKnational or business makes a substantial investment into a new orexisting US business. As with the E-1 visa, the UK national orbusiness must purchase at least 50% of the US enterprise. The focusin this visa category however is on the investment, not the trade. The investment must be deemed substantial and non-marginal. Non-marginal broadly means that the investment cannot merely resultin an income stream to support the investor and his/her family. Rather, the business must have the potential to generate job growth,substantially benefit the community in which it is situated orgenerate more than personal income for the investor. Whether theinvestment is considered substantial is even harder to explain. Thisis because US immigration regulations dont define substantiality. As a result, each Embassy post can have differing views on whatqualifies as a substantial investment. In London, for example,where consular officers are notoriously tough on investors, aninvestment of $50,000 may not qualify the investor for an E-2 visa,whereas another Embassy might indeed view such an investment assubstantial and agree to accord E-2 status.
Because of the relatively highstandards that seem to be regularly imposed by the US Embassy inLondon, individuals seeking to pursue smaller investments can bediscouraged from attempting. What some may not be aware of, however,is that there may be a way around the Embassy. If an individual isable to obtain (or already has) a B-1/B-2 visitor visa, theindividual can travel to the United States as a prospective investor,identify an appropriate investment and apply to change status in theU.S. from visitor to E-1 or E-2 status. Such a change of statusapplication is made with the US Citizenship & ImmigrationServices (CIS), which tends to have a more lenient standard forsubstantiality than many Embassies. Employing this strategy, aprospective investor may then be able to successfully obtain an E-2visa and pursue a smaller investment than would otherwise be approvedby the Embassy in London.
For additional information on the E-1or E-2 visa categories, or other potential U.S. investment options,please dont hesitate to contact me at dkatona@katonamir.com.
