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Despite the wreckage that the COVID-19 pandemic has had on international travel, both investor and trade visas remain powerful options for foreign nationals seeking to immigrate to the United States.

The United States is the world’s largest recipient of foreign direct investment (FDI’s). In the year 2020, the United States received more than $156 billion through FDI’s. As a result, U.S. policymakers have always been keen to promote business travel to facilitate foreign trade and investments. The specific visas available for foreign investment and trade are the E-2 and E-1 visas, respectively. This article will explore the benefits and trade offs of each of these visas and discuss the eligibility requirements for each of them.

Who is Eligible for E-2 Visas?

E-2 Visas are issued to investors who are nationals of a “Treaty Country”. A Treaty Country is a country that has signed a treaty of commerce and navigation or a qualifying international agreement with the United States. In some cases, a country may be designated as a treaty country by legislation. Currently, the United States has a treaty of commerce and navigation with 136 countries, out of which the investors from 81 countries are eligible for E-2 Visas.

Does that mean that all nationals from Qualified Treaty Countries are eligible for E-2 Visas? No. E-2 Visas are provided to those investors who have invested or are in the process of investing a “substantial amount of capital” in a legal U.S. business. These investors are known as “Treaty Investors” and such business is known as the “Investment Enterprise”.

A Treaty Investor must be the 50% (or more) owner of the investment enterprise. If such an investor does not own at least 50% of the business then they must possess the operational control of such business.

What is the meaning of the term “Substantial Amount of Capital”? This is a relative term and there is no predefined dollar amount! Whether or not an investment is substantial will be determined on a case-by-case basis. Different businesses require different levels of capital. Hence, the amount of substantial capital for any business will depend upon the nature of such business.

The law provides that an investment must be substantial having regards to the total cost of either purchasing an already running business or establishing a new business. In other words, the investment must be proportionately higher than the cost of acquiring or establishing a business. Also, such investment must be sufficient for the smooth running of the business.

Does investing in a Non-Profit Organization make one eligible for an E-2 Visa? No, the E-2 Visa is provided to investors who have invested or who are in the process of investing money in a business producing goods or services for profit. Also, such business must be active, legal, and bonafide.

Does investing money in an entity operating at a loss mean I’m not eligible for an E-2 Visa? Not necessarily. As a general rule, the business in which the foreign national is investing money must have sufficient current and future earning capacity to generate income in excess of the reasonable living expenses of the investor and their dependents. In other words, if the investment enterprise is simply marginal—only generating income for the investor and their family— then the investor may not be eligible for E-2 classification.

But it is a known fact that most businesses require some time to generate sufficient income to start payments to their owners. The law provides that the investor may be eligible for E-2 classification if such business is at least capable of generating sufficient income within a period of five (5) years. If you have any questions about this point, please consult with an experienced immigration attorney.

What is the Difference between Treaty Investor and Treaty Trader?

Both treaty investors and treaty traders must be nationals of a designated treaty country as previously discussed. The treaty trader, classified under the E-1 visa, is for foreign nationals who enter, work, and stay in the United States with the sole purpose of engaging in “substantial international trade”. Unlike E-2 treaty investors, E-1 treaty traders do not invest a substantial amount of capital in a U.S. business.

“I’ll apply once Trump is gone” — I’ve heard this phrase echoed numerous times in 2020, and particularly since the onset of the COVID-19 Pandemic. While I understand the underlying sentiment expressed (e.g. immigration applications may be more favorably adjudicated under a new administration), I caution anyone with this line of reasoning to reconsider any delay in applying for immigration benefits for the following reasons:

1. USCIS Will be Increasing the Costs of a Majority of Immigration Applications

First, delaying submission is very likely to result in having to pay increased application costs. Beginning October 2, 2020, the Department of Homeland Security (DHS) will be adjusting USCIS fees by a weighted average increase of 20 percent, including additional new fees for certain immigration benefits.

For example, the total cost of applying for permanent residency through a family-based petition (e.g. with concurrently filed work permit and travel authorization applications) is increasing by 46.62-percent (i.e. $1,760.00 to $2,830.00), while Citizenship applications are increasing by approximately 46.97-percent ($725.00 to $1170.00). Employment visas are not exempt from this increase–L visas are increasing by 75-percent, O visas are increasing by 53 percent, and H-1B Visas are increasing by 21 percent. Given the limited time remaining before the fee increases go into effect, those with financial constraints should consider applying as soon as possible.

UPDATE: On September 29, 2020, Judge Jeffrey S. White, Federal District Court Judge of the North District Court of California, issued a preliminary injunction and stay of the effective date of the Final Rule of the fee increase. Until the order is lifted, Applicants will not have to pay the higher fees as stated in the Final Rule. Because the injunction is only temporary, we still recommend filing your immigration application sooner rather than later before the Final Rule ultimately goes into effect.

2. The Recently Updated Public Charge Rule has Been Enjoined During COVID-19 

Second, applicants for permanent residency or applicants for changes/extensions of  nonimmigrant status should take advantage of the fact that USCIS is not applying the February 24, 2020 Public Charge Rule. As long as the July 29, 2020 Southern District of New York Injunction is in effect, USCIS will apply the 1999 public charge guidance that was in place prior to February 24, 2020. Under the 1999 rule, applicants do not need to complete Form I-944, Declaration of Self Sufficiency. The 1999 public charge rule is far less stringent than the 2020 rule, and requires much less documentation to satisfy the adjudicating officer’s determination that an immigrant is not likely to become a public charge. However, there is no indication regarding how long the court injunction will remain in place–applicants should take advantage of applying for immigration benefits as long as this injunction is in place.

3. Incumbents are Hard to Defeat

There is a substantial chance that President Trump will win reelection. In the last 100 years, only three U.S. incumbent Presidents have ever lost (Herbert Hoover in 1932, Jimmy Carter in 1980, and George H.W. Bush in 1992). While I am no polling expert, aspiring immigrants should consider the realistic possibility of the President’s reelection and contemplate how they will navigate the U.S. immigration system going forward.

In so doing, you should consider that the most beneficial changes to immigration law (from the perspective of an immigrant) occurred under Ronald Reagan’s watch and were because of Ronald Reagan.  President Reagan was conservative.  Conversely, some of the most sweeping changes to U.S. immigration law that had a negative impact upon immigrants were signed into law by President Clinton.  President Clinton was a democrat.  Similarly, approximately five times the amount of people were deported during the democratic Obama administration then were under the previous five administrations combined.  Simply put, do not wait to pursue relief that you are otherwise eligible for because you think a different President will benefit you.

Immigrating to the United States remains a complicated and often difficult task and it is essential to consult with an expert regarding your immigration issues, now more than ever.