E-2 VISA- AN IMMIGRATION PATHWAY TO THE UNITED STATES FOR TURKISH NATIONALS

Written by Taher Kameli

The E-2 visa provides an immigration pathway for foreigners who seek to come to the United States. In general terms, an E-2 visa is for (a) a citizen of a country with which the United States maintains “a treaty of commerce and navigation”, (b) who will “develop and direct” a United States “enterprise” in which he or she invests “a substantial amount of capital”. The E-2 visa has been popular with Turkish nationals in recent years. In 2014, 422 Turkish nationals were issued an E-2 visa in the United States. In 2017, 629 Turkish nationals were issued an E-2 visa in the United States — a 49 percent increase over 3 years. This paper examines how other Turkish nationals can follow this immigration trend and obtain an E-2 visa to come to the United States. Long Standing Economic Relationship of the United States and Turkey The United States and Turkey have a longstanding economic relationship. The United States and Turkey signed an Economic and Technical Cooperation Agreement in 1947. Overall United States-Turkey trade significantly increased from $10.8 billion in 2009 to $20.5 billion in 2018. In 2017, Turkey was the United States’ 28th largest goods export market and its 34th largest supplier of goods imported. The top categories of United States exports to Turkey in 2017 include aircraft, agricultural products (including tree nuts, distillers grains, and soybeans), iron and steel, mineral fuels, machinery, and cotton. The top categories of United States imports from Turkey in 2017 include vehicles, iron and steel, machinery, agricultural products (including processed fruit and vegetables, tobacco, and snack foods), carpets and other textile coverings, and stone, plaster, and cement. In addition, Turkey had $2 billion of foreign direct investment in the United States in 2017, up 18.1 percent from 2016.

Given these extensive economic ties between the United States and Turkey, it is not surprising that E-2 visas have been available to qualifying Turkish nationals since May 18, 1990.

Key Specific Requirements of E-2 Visas

Besides the requirement of being a citizen of Turkey, among the key specific requirements of E-2 visas for Turkish nationals are the following:

• The Turkish national must come to the United States “solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing”. For these purposes, “solely to develop and direct” means that the Turkish national must establish that he or she controls the enterprise by demonstrating ownership of at least 50 percent of the enterprise, by possessing operational control through a managerial position or other corporate device, or by other
• The “investment” for an E-2 visa is the Turkish national placing of capital, including funds and other assets (which have not been obtained, directly or indirectly, through criminal activity), at risk in the commercial sense with the objective of generating a profit.
• The Turkish national must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Only indebtedness collateralized by the Turkish national’s own personal assets, such as a second mortgage on a home or unsecured loans, such as a loan on the Turkish national’s personal signature, may be included as “investment”, since the Turkish national risks the funds in the event of business failure. Indebtedness such as mortgage debt or commercial loans secured by the assets of the enterprise cannot be included as “investment”, as there is no requisite element of risk.
• Capital in the process of being invested or that has been invested must be irrevocably committed to the The Turkish national may use any legal mechanism available, such as the placement of invested funds in escrow pending E-2 visa issuance, that would not only irrevocably commit funds to the enterprise, but that might also extend personal liability protection to the Turkish national if the E-2 visa application is denied.
• The investment must be in a bona fide enterprise in the United States, which must be a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit.
• The investment cannot be in a marginal enterprise, which is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the Turkish national and his or her family. An enterprise that does not have the capacity to generate such income, but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future income- generating capacity should generally be realizable within 5 years from the date the Turkish national commences the normal business activity of the enterprise.
• The investment must be of “a substantial amount of capital”, which cannot be of a relatively small amount of For these purposes, “a substantial amount of capital” constitutes an amount which is (i) substantial in the proportional sense, i.e., in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration, (ii) sufficient to ensure the Turkish national’s financial commitment to the successful operation of the enterprise; and (iii) of a magnitude to support the likelihood that the Turkish national will successfully develop and direct the enterprise. Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale, i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital. For example, investments constituting 100 percent of the total cost would normally be considered substantial for a business requiring a startup cost of $100,000. At the other extreme, an investment of $10 million in a $100 million business may be considered substantial, based on the sheer magnitude of the investment itself. The term, “substantial”, is not defined by reference to any specific minimum amount of capital investment. Rather, it is defined by reference to the “enterprise” (business) in which the investment will be made by the Turkish national. For example, while a consulting business may require a relatively small investment, a manufacturing business likely will require a much larger investment.
• The Turkish national must intend to depart the United States upon the expiration or termination of E-2 visa status. This point means that the E-2 visa is a “nonimmigrant visa” and does not grant a permanent right to stay in the United Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no limit to the number of extensions an E-2 nonimmigrant may be granted. An E-2 nonimmigrant who travels abroad may generally be granted, if determined admissible by a U.S. Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States.

How to File for E-2 Classification — In the Case of Treaty investor is:

Currently in the United State in a Lawful Nonimmigrant Status

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 to request a change of status to E-2 classification on the employee’s behalf. The basic filing fee for all I-129 petitions is $460. This fee must be paid each time that the petition is filed including for extensions and amendments.

How to File for E-2 Classification — In the Case of Treaty investor is:

Outside the United States

A request for E-2 classification may not be made on Form I-129 if a treaty investor is physically outside the United States. Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad. If E-2 visa is approved and issued to the treaty investor, the person may seek admission at a United States port of entry as an E-2 nonimmigrant.

Family of E-2 Treaty Investors and Employees

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents. If family members’ E-2 nonimmigrant classification is approved, generally they will be granted the same period of stay as the employee. If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with $370. Spouses of E-2 workers may apply for work authorization by filing a form I-765 with the $410.

Businesses Invested in by Turkish Nationals to Obtain E-2 Visas

Among the businesses in which Turkish nationals have invested in recent years to obtain E-2 visas are the following: Various franchises, including gelato, fitness, and coffee franchises; Various restaurants; Freight forwarding company; Corporate consulting and research firm; Auto refinishing and detailing services; Logistics company; and High-end tile design company. Any

of the above-described categories of significant imports by the United States from Turkey (such as, for example, carpets and other textile coverings, and stone, plaster, and cement) would appear to be excellent areas for Turkish nationals to invest in a United States business and obtainE-2 visas.

Advantages of the E-2 Visa Over the EB-5 Visa

Another popular United States immigration visa based on investment is the EB-5 visa. However, the E-2 visa has various advantages over the EB-5 visa for the Turkish national. First, while the EB-5 visa requires a foreign investment of $500,000 or $1,000,000 under current law (and these amounts are likely to increase in the future), the “substantial amount of capital” requirement for the E-2 visa will generally result in a smaller amount of investment. Second, while the EB-5 visa requires the creation of 10 jobs, there is no such specific “job creation” condition for the E-2 visa. Third, the processing time for the E-2 visa is generally a few months — much shorter than the multiple years of processing time for the EB-5 visa. Fourth, most EB-5 investments are structured as passive investments, with the EB-5 investor generally having no control over the investment funds or the business in which the investment is made. On the other hand, the E-2 investor generally has control over the investment funds and the business in which the investment is made. Fifth, because the EB-5 visa is a “permanent residency in the United States” visa (qualifies the EB-5 investor to receive a “green card”), the EB-5 investor is taxable in the United States on worldwide income. In comparison, because the E-2 visa is not a “permanent residency in the United States” visa (although, as described above, it can be renewed indefinitely), the E-2 investor is not necessarily taxable in the United States on worldwide income (although may be if the E-2 investor resides a significant portion of the year in the United States). Sixth, the legal fees are generally less for the E-2 visa than for the EB-5 visa.

Based on its strong economy, political freedoms, and cultural diversity, the United States is an attractive destination for many foreigners. Turkish nationals desiring to come to the United States should definitely consider the E-2 visa. The Law Offices of Kameli and Associates has extensive experience in helping immigrants obtain E-2 visas. If any Turkish nationals has questions about, or desires to obtain, an E-2 visa, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312–233–1000.