Do You Want to Remain in the United States for More Than 183 Days?

April 24, 2002

As a foreign national, you may well find yourself unable to stay in the United States for more than 183 days at a time. At the same time, you may find that you would really want to remain in the country longer and, perhaps, live in the United States permanently. Are there any visas which are relatively easy to obtain and could enable you to do so? The answer is “yes!”

An investment by a foreign national of most countries into a U.S. business can result in either a nonimmigrant (temporary) or an immigrant (permanent) visa. The principal temporary visa, known as an E-2 visa, has the following requirements:

The investor must be a national of a country which has a commercial treaty with the U.S.
The business into which the investor places his or her money must be at least majority (50.1%) owned by nationals of that country
The investment must be "substantial" in nature, i.e., typically in excess of $100,000
The investment must (at least ultimately) result in potential jobs for U.S. workers
The investor must play a role in the business by, for example, “overseeing” the investment or managing the day-to-day affairs of the company.

Assuming that these requirements can be satisfied, application for an E-2 visa is made directly at the appropriate United States Consulate. The application is processed in approximately four weeks and, once approved, the visa is valid for five years. Although temporary in nature, an E-2 visa can typically be extended for an indefinite period of time.

An alternative temporary visa category to consider is the L-1 (intracompany transferee) visa. As its name reflects, this visa is available where, for example, an individual owns a business in both the foreign country and the United States and effectively transfers from the foreign to the U.S. company. To qualify, the person must have worked for the foreign company for at least one year and, very importantly, the foreign company must continue to be in business during the entire period of time of the transfer, i.e., even while the investor/business owner has moved to the United States. L-1 visas are valid for a total of seven years.

A significant benefit associated with an L-1 visa is that if the visa holder is interested in subsequently pursuing permanent residence status (a “green card”), this visa provides an expedited route. Specifically, “labor certification” (where the petitioning employer proves that no U.S. worker is losing a job through the foreign national's employment) is not required when the person enters with an L-1 visa as a managerial or executive employee. Skipping the labor certification requirement reduces in half the process of securing a green card, which can take up to three years.

If, on the other hand, the investor is able or willing to invest substantially more money into a U.S. business, a permanent visa (resulting in a “green card”) becomes available. To qualify, the foreign investor must establish the following:

An investment of at least $1 million into a U.S. business (which he or she has either created or purchased from a previous owner)
The U.S. business must be majority owned (at least 50.1%) by the foreign investor
The investment must create at least 10 full-time jobs for U.S. workers
The investor must play an active role in the investment by, for example, overseeing the day-to-day affairs of the company.

If these requirements can be satisfied, the investor is issued a "green card" which enables him or her to reside in the United States permanently.

Particularly for people who are looking for ways to be able to spend more time (and perhaps retire) in the United States, E-2 and L-1 visas are excellent options which should be considered.

For more information, please contact hnevin@cohenlaw.com or llebowitz@cohenlaw.com.