With an election coming up, President Obama touts his policy of encouraging “in sourcing” and discouraging “outsourcing” of services and manufacture of goods. In an effort to accelerate job creation, the Obama administration has reiterated its full support to entrepreneurs. Policies and regulations relating to applications for immigrant and nonimmigrant investor visas have been revisited since last year to encourage investment.
Types of investor visas
There are various types of foreign investor visas. The most known is the “one million dollar” investment visa that will give the investor the status of a green card holder.
There is also the “exceptional ability visa” under the second employment-based category. This type of visa focuses on the exceptional abilities and qualifications of the entrepreneur and how it benefits the US economy rather than the amount of investment.
In the nonimmigrant or temporary visa category, an entrepreneur may apply for the E1 or E2 investors’ visas. The E1 visa is the treaty trader visa for those who conduct substantial trade of goods or services with the US. The E2 investor visa, on the other hand, is issued to an individual entrepreneur who invests “substantially” in a US enterprise.
How much investment
For the immigrant investor visa, the amount of investment may either be $1 million or $500,000 depending on the location of the investment enterprise.
For designated regional centers, the investor must be able to show at least half a million dollars for the immigrant visa to be approvable. In addition, the immigrant investor must be able to show that the investment enterprise will create at least 10 jobs for US citizens or permanent residents.
For the nonimmigrant E2 investors’ visa, no specific amount is required. What is required is for the investor to show a “substantial” amount of investment as distinguished from a relatively small amount of capital. To determine whether the investment is substantial, a proportionality test is used. This test considers the proportion between the amount of the funds actually invested and the value of the business. The investment that equals or exceeds the value of the business is usually considered substantial.
For E2 investors, even if no set amount is required, a marginal enterprise is not likely to get the nod for an investor’s visa. A marginal investment is when the investment does not have the present or future capacity to generate more than enough income to provide a minimal living income for the investor and his family.
Exceptional ability visa
There is also the EB2 or the employment-based second preference category. Individuals with exceptional ability in the field of science, arts or business may qualify for this visa. The expertise of the entrepreneur must be shown to substantially benefit the US economy aside from showing that the skill is significantly above what is ordinarily encountered in the sciences, arts or business.
There are two ways to obtain this EB2 visa. One is through a petition by a US employer after the Department of Labor approves an application for labor certification. The other is through a self-petition if the entrepreneur meets the “national interest waiver” standards. If the entrepreneur’s business will create jobs for US workers there is a strong probability that an such a visa will be granted.
Spouses and minor children of the immigrant or nonimmigrant visa entrepreneurs will also be entitled to visas.
Open for business
With the need for the US to compete in the global economy and the support it gives to enterprises that stimulate job growth, Filipinos who are interested in diversifying their investments to the US have these entrepreneur visa options. Entering the US to develop and operate an enterprise is a serious commitment as it will require placing substantial capital at risk with the hope of generating profitable returns. With the severe backlog in employment-based immigrant visas, and professional working visas always reaching its annual maximum cap, investing in an enterprise may be an available alternative for some.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)