USA Emigration Explained by David Katona

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Overseas expert David Katona discusses the ins and outs of emigration

David Katona

Although there are many types of temporary work visas that may allow one to work in the United States,the most appropriate visa for UK nationals looking to invest in a new or existing business in the US is typically the E-1 or E-2 visa.

The E-1 visa is available in situations where a UK national or business invests in a new or existing US entity that engages in substantial international trade of goods or services with the UK. The UK national (or another UK national or business) 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, the trade must be substantial, regular and continuous (ie, cannot be based 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 the investor himself) who will assume a supervisory or essential skills position at the company.

The E-2 visa is appropriate when a UK national or business makes a substantial investment into a new or existing US business. As with the E-1 visa, the UK national or business must purchase at least 50% of the US enterprise. The focus in 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 result in 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 or generate more than personal income for the investor. Whether the investment is considered substantial is even harder to explain. This is because US immigration regulations don't define substantiality. As a result, each Embassy post can have differing views on what qualifies as a substantial investment. In London, for example,where consular officers are notoriously tough on investors, an investment of $50,000 may not qualify the investor for an E-2 visa,whereas another Embassy might indeed view such an investment as substantial and agree to accord E-2 status.

Because of the relatively high standards that seem to be regularly imposed by the US Embassy in London, individuals seeking to pursue smaller investments can be discouraged from attempting. What some may not be aware of, however,is that there may be a way around the Embassy. If an individual is able to obtain (or already has) a B-1/B-2 visitor visa, the individual can travel to the United States as a prospective investor,identify an appropriate investment and apply to change status in the U.S. from visitor to E-1 or E-2 status. Such a change of status application is made with the US Citizenship & Immigration Services (CIS), which tends to have a more lenient standard for substantiality than many Embassies. Employing this strategy, a prospective investor may then be able to successfully obtain an E-2visa and pursue a smaller investment than would otherwise be approved by the Embassy in London.