by Curtis Pierce

          In May of this year, I had the privilege of being invited by the American Business School Paris to present a seminar en français on US Immigration Law, specifically business immigration.  The event drew a large following of enthusiastic Parisians, students as well as professionals, all hungry for the American dream.    I discussed business visas such H-1Bs for professionals, L-1 for intracompany transferees, as well as many other commonly sought visas. 

            Although I had lived five years of my adult life in Paris,  I had not been back in France since 1995, when I was teaching anglais juridique at the University of Paris. When I left, Jacques Chirac had just been elected President.      
            To make good use of time, I requested a meeting at the American Embassy in Paris to resolve several questions that clients have regarding visa processing at the American Embassy.  In many ways, visa processing at the American Embassy in Paris has been something of a mystery to me.    I have over the years represented many clients who have gone to the Embassy for their visa appointments, but had never actually been there myself.  When asked what to expect,  I could not provide my clients with a definitive answer based on personal experience.    

            After several faxes and emails, my request for a meeting with high level officials at the Embassy was finally approved.  I decided to use the opportunity to ask questions pertaining to one of the most sought after nonimmigrant visas by French nationals, the E-2.   The E-2 visas is for “Treaty Investors.”   The applicant must demonstrate a “substantial investment” in a commercial enterprise.     It must be demonstrated that the applicant is trying to do more than simply earn a living.  The investor should be putting money at risk with the intention of making a serious profit.  

COMBIEN D’ARGENT FAUT-IL INVESTIR?   

            My clients often ask:  What is meant by substantial investment?  How much is enough?   How much do I need to invest in a company in order to have this E-2 visa? The regulations state that there must be a substantial investment and there are no clear guidelines.  What is “substantial” depends on the type of business involved.  In other words, a small French restaurant would require less of an investment than a petroleum company.    The officials corroborated this.    I did not get any indication of precise dollar amounts that would increase the chances of getting an E-2 visa approved. 

JE PEUX MONTRER BEAUCOUP D’ARGENT DANS MA COMPTE BANCAIRE.
CA SUFFIT POUR LE VISA E-2?  

            For an E-2 visa application to be approved, the funds must be at risk, at risk of being lost. They must really be invested in a commercial enterprise.  Simply showing funds in a bank account will not be sufficient. 

LES EMPLOYES, C’EST VRAIMENT NECESSAIRE?

            Some of my attorney colleagues believe that it is necessary to have employees in order to get an E-2 visa approved.   Therefore, I asked if this is true.  “Is it indeed necessary to have employees in order to get an E-2 approved?”   The answer was negative.    The officials indicated that theses cases, like other cases, are decided on an individual  case by case basis.   And it is not correct to assume that employees are necessary for approval of an E-2 visa. 

JE SUIS CONSULTANT, MOI.  C’EST BIEN, NON?  (No.)

            The officials indicated that they tend to look with disfavor on “consultant” type businesses.   Anyone can open an office and say they are a consultant.   Officials want to see a substantial investment in an ongoing commercial enterprise.   (To this end, commercial space, equipment, supplies, inventory, are all helpful.) 

QU’EST-CE QU’ILS CHERCHENT DONC?   

            The officials strongly suggested that what they like to see is that the person applying for the visa really wants the business and believes the enterprise will be successful.  The applicant should not be creating a business or getting incorporated simply as a means of obtaining an E-2 visa.  If the consular officer feels that the company has been set up simply as a means of obtaining a visa, the visa will be denied. 
            This point seems self-evident.  Nevertheless, it is  a good point to keep in mind in determining whether or not someone should really pursue the E-2 visa as an option.

JE SUIS ENTRE AVEC LE VISA WAIVER ET JE SUIS RESTE PLUS DE 90 JOURS.   C’EST FOUTU, NON?    (Not necessarily.) 

            I also brought up the issue of unlawful presence.  If a national from France enters the United States on a visa waiver, they are allowed 90 days to stay in the United States.  I often meet clients who have overstayed beyond this 90 day period. The law specifically states that if someone stays over 180 days in unlawful status and they depart from the United States, they are barred for three years from re-entering.   If someone has remained unlawfully for over one year, and departs from the United States, the rule is they cannot re-enter for 10 years.   (There are exceptions and waivers, but that is the subject of another article.) 

            I asked what the Embassy position is in regard to someone who has overstayed for less than 180 days.  What effect does this have on visa processing?  (This has been something I have been wondering for many years but this was the first time I actually had the opportunity to ask this question to the individuals responsible.) 

            Once again, the answer was not definitive.  Applications are decided on a case to case basis.   Therefore, a couple of weeks of unlawful presence in the US may not be fatal.  In my experience as an immigration attorney, I have often found that most cases in immigration law whether E-2 visa applications before a consular officer or asylum applications before an Immigration Judge are all decided on a case by case basis.   The system is such that the success of the case often depends on who the adjudicator is and many other factors other than case’s merits. A case denied by one officer could very well have been approved by another officer. 

            The most important thing to remember is if you are going to be submitting an application for an E-2 visa, it should be properly prepared, well documented,  have a good business plan, and convince the consular officials that you really want the business and that your are not simply creating a corporation/business as a means of obtaining a visa.

Curtis Pierce, Esq. is a Certified Specialist in Immigration & Nationality Law by the State Bar of California Board of Legal Specialization. He is French speaking and his law firm is located in Los Angeles, California. He has successfully argued several cases before the Ninth Circuit Court of Appeals including Lopez v. INS, 184 F. 3d 1097 (9th Cir. 1999), Cardenas v. INS, 294 F.3d 1062 (9th. Cir. 2002) and Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003). He is a graduate of Loyola Law School and completed his undergraduate studies at UCLA.  From 1992-1995, he taught Constitutional Law at the University of Paris-1.  His firm’s website may be found at www.cpvisa.com.