Visas & Advice Detail
E-2 checkmate
Matt French looks at the E-2 visa and tries to fathom what you need to do to win with this category.
The E-2 treaty trader investment visa is an often debated subject in immigration and expat circles. Hot topics include if it is a viable visa for those who want to emigrate to the states, where to find the best help and what you need to be aware of when you apply – including looking ahead to renewal.
The first thing to know is that the E-2 visa cannot itself lead to you securing permanent residency.
"It never ceases to amaze me how many British E-2 holders believe the US owes them permanent status because they earn enough to live, employ Americans and pay taxes," Peter O'Connell of Visa2theStates says. "That was the deal they made originally to get the visa."
Ambiguity surrounds the E-2 category, though, with vague terms used in relation to qualifying criteria: including the "substantial amount of capital" necessary, and creating "more than enough income to provide a minimal living for the treaty investor." In truth, it is little wonder that so many Brits fall foul to misinterpretation of vague visa conditions, while even more suffer from inaccurate or incomplete advice received prior to their application.
There are ways of preparing for the E-2 category prior to your initial application, though.
Research
One way of helping you avoid problems with the task of renewing your E-2 visa is to read up on the visa category as thoroughly as possible prior to applying in the first place. This way you will have a better knowledge of what will be required to secure your continued non-immigrant status in the US.
"Read the wealth of help and advice on the relevant internet forums," advises O'Connell. "These comprise hundreds of members who have actual E-2 experience. It is a great way of getting questions answered for free by people with nothing to gain."
However the advice you receive from the many expat forums should not be taken as gospel truth: members may may impart opinions with the best of intentions but not knowing the particulars of your situation will mean they could easily mislead you. What forums are good for, though, is pointing you in the right direction.
"Concerning professionals to approach, always rely on word of mouth," O'Connell urges. "A recommendation from someone with nothing to gain is priceless."
This is especially true as there is no regulatory body governing the many people who purport to be E-2 visa experts.
Unfortunately you will find many stories of expats' who – having been given poor advice when they applied – face problems trying to renew their E-2 visas or, worse still, face deportation. However, despite the horror stories you may read on internet forums that may put people off applying for the E-2 in the first place, it is far better to learn from other peoples' mistakes than make the same ones yourself.
"You can never ever do too much research," enthuses O'Connell. "Emigration is life changing – so it is essential that you know your facts at every aspect."
One horror story of many
In 2005 Brits Jon and Julie Pierce bought the bed and breakfast Inn Victoria in Chester, Vermont for $625,000. They applied for an E-2 visa for this business knowing they would never be allowed to reside in the US permanently and must leave the US upon sale of the business.
A seven-year business plan submitted with their visa application projected increased occupancy and sales, and indicated employment of a part-time housekeeper. In March 2005, following an interview at the US Embassy in London, they were granted a two-year visa. At this time no concerns were made regarding their business plan and there was no mention of the 'compulsory' nature of employees.
"By the time we were looking at renewal we had been rated the number one B&B in Vermont [with website Tripadvisor], had doubled income and occupancy and were active members of the chamber of commerce and fundraising via various charity projects for local groups," Julie explains.
"We were confident of a five-year renewal as we had hit all targets and, although we did not have a part-time housekeeper, we had employed painters, builders, roofers, web designers, and others, with a labour bill of over $16,000 per annum for the first two years."
Having increased sales from approximately $70,000 per year to over $130,000 and occupancy from 17 per cent to 29 per cent, you may think the couple's optimism was warranted. However, they were in for a shock this year when they travelled 3,500 miles to the US Embassy in London (another awkward necessity of the E-2 process) for their renewal interview.
"The adjudicating officer said that our business was 'marginal' and technically a visa "should be denied" as we do not currently have employees," Julie says. "However, he went on to say that because we "have tried" he would give us a two year extension to "turn the business round and employ people."
The couple were then told that unless they complied in two years' time their visa renewals will be denied. This seems like rough justice, but is an all-too-common result of the interpretive nature of the E-2 visa's qualifying criteria.
"We cannot play Russian Roulette with our lives," Julie says. "If we are denied in two years we run the risk of being landlocked in the UK with our business depreciating rapidly until it can be sold. How can anyone be expected to live like that?"
Despite their best efforts and success, the Pierces now feel they have little option but to sell.
Reform
There have been many calls to reform the E-2 system. One advocate of change, Congresswoman Heather Wilson, called for 3,000 green cards to be made available to E-2 visa holders every year if they meet certain criteria, but her bill did not gather much support.
A website has also been set up by a group of E-2 visa holders calling for change. For more information and to sign an online petition visit www.e2reform.org.
Until reform occurs though the best defence to E-2 'obstacles' is research and bending over backwards to try and negotiate often-changing goalposts.
For more information visit:
www.visa2thestates.co.uk
Visit the Pierces' B&B website at:
www.innvictoria.com
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Article first published 1st Spetember 2008 in Emigrate America