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To invest is a long short-term affair (E-2)

Bertrand Serieux is an entrepreneur. He is a French citizen who lives in Spain. Bertrand called our office recently, because he had been asked by an investment company to develop a real estate project in Florida . The investors were a group of French business people who wanted to pump $2 Million into the development of a resort. The development of this project will take about 4 years to complete and will cost over $15 Million. Bertrand himself is investing $49,000.00.

Bertrand wanted to move to Florida and bring his whole family. He had read somewhere that he could enter the United States as an investor and get a green card right away if the investment was more than $1 Million. He considered himself a shoe in.

I hated being the bearer of bad news, but in this case the information he had read was not totally accurate. “Yes, it is true,” I said, “that if an investor invests $1 Million then he could potentially qualify for an investor green card. The investment also has to generate work for American workers. But what’s not true is that the total investment of $1 Million would be sufficient, when your own share is less than that. It won’t work. You can’t add all the investments up”.

Bertrand was very disappointed and asked if there were any alternatives. “Well”, I continue, “this is where the E-2 temporary investor visa may be a solution”.

The United States has a Treaty with 28 countries that allows investors to apply for an investor visa and France is one of the treaty countries.

The requirements for the E-2 Treaty Investor Visa (as we say in our immigration jargon) are as follows:

- The investor has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States , as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
- The investor is seeking entry solely to develop and direct the enterprise; and,
- The investor Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status.

Since Bertrand’s investment wasn’t substantial he wouldn’t qualify as an investor himself, he should be sent as an employee and the following would apply:

- Bertrand needed to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the alien's services essential to the efficient operation of the enterprise; and,
- He had to have the same nationality as the principal alien employer (investor).
- In addition, Bertrand must intend to depart the United States upon the expiration or termination of his E-2 status.

The principal employer of Bertrand Serieux had to be:

- A person in the United States having the nationality of the treaty country and maintaining nonimmigrant treaty investor status or, if not in the United States, would be classifiable as a treaty investor; or,
- An enterprise or organization at least 50 percent owned by persons in the United States having the nationality of the treaty country and maintaining nonimmigrant treaty investor status or who, if not in the United States , would be classifiable as treaty investors.

Bertrand definitely had his home work cut out for him to help me build a case as a Treaty Investor employee (E-2). It took us a good 6 weeks to prepare a solid application. The evidence had to show:

- Who the investor was in France ;
- Where the money originated from;
- The bona fides of the investment;
- The relationship between the investors
- The nature of the employer and the necessity of Bertrand’s presence in the United States

Then, once it was filed, the Consulate took approximately two months to approve the case. Now Bertrand is in Florida managing the project. In two years he will have to prove that the investment is still active and that he has maintained his status at all times. And as long as he manages this active investment he can continue to renew his E-2 treaty Investor Visa.

Please note that if Bertrand had been able to make a “substantial” investment, the analysis and strategy would have been to have Bertrand enter as an investor himself.

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  Secure America and Orderly Immigration Act of 2005  
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  To invest is a long short-term affair (E-2)  
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We hope you find this information helpful. If you have any immigration questions, please contact David Asser, either by phone at (602) 228 9773 or e-mail at david@asserlaw.com. You can also visit the website at www.asserlaw.com


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