Seguritan US Immigration Articles

Sham Marriages and the Adjustment Interview

Entering into a sham marriage only for the purpose of obtaining immigration benefits is a serious matter that could have many consequences. It could lead to the deportation of the alien spouse and a bar on the approval of future immigrant visa petitions. Marriage fraud also gives rise to potential criminal violations for both spouses, the penalties for which include imprisonment and fine.

But what exactly is a sham marriage? If a man and a woman fall in love and marry after a whirlwind courtship of two weeks, and the man knew that the woman needed lawful immigration status to remain in the U.S. and promised to help her obtain a green card, is their marriage a sham?

A “sham marriage” has been described as one entered into for the primary purpose of evading immigration laws where the husband and wife have no intent of establishing a life together. Although they may have had a real marriage ceremony, if they did not intend a real marital relationship and establish a life together as husband and wife, their marriage is a sham.

In other words, if a marriage was entered into solely for the purpose of acquiring immigration benefits or evading immigration laws, it is not a valid marriage for immigration purposes.

However, if the parties had the intent of obtaining something other than love and companionship, as long as they intended to live as husband and wife at the start, the marriage is not a sham. In the example above, the marriage would not be a sham even though the parties also intended the marriage to help the wife become a lawful permanent resident aside from sharing a life together as husband and wife.

Suppose that the man in the example was already elderly and sick and needed someone to care for him, while the woman was unemployed with no place to live. They married and lived in the same house but without sleeping in the same bedroom or consummating their marriage. However, they promised to live together as husband and wife. A court found that under these circumstances, the marriage was not a sham and that cohabitation and consummation are not essential.

If, for example, the man and woman did cohabit for several months but their relationship soured quickly and the woman moved out of the house after only one year. They have no children and no properties. In this case, their marriage still would likely not be considered a sham. The law does not require the marriage to be an “ideal” or love-filled marriage.

The intent to live as husband and wife is a subjective matter that is proven through action or objective evidence. Documentary evidence showing that the couple held themselves out to the world as husband and wife should be brought to the interview.

These include joint tax returns, lease contract showing both their names, wedding photos and photos with family members, joint bank statements and credit card statements, birth certificates of children born to the marriage, telephone bills showing communication, medical records indicating the spouse as a person to contact, and affidavits of third parties with knowledge of the bona fides of the marriage.

Aside from evidence to be presented to the adjudication officer, the husband and wife should also be prepared for the personal interview. They should brace themselves for a detailed questioning about their personal lives. The officer may ask questions that seem too intrusive but are still within the bounds of law, unless they relate to sexual habits or personal eccentricities.

Inconsistencies in answers should be avoided because these will feed the suspicion of the officer. Immigration officers have great experience in detecting marriage fraud and they are skilled in uncovering lies based on conflicting information in the forms, documentary evidence and testimony. If fraud is suspected, the couple may be interviewed separately.

Great News for Spouse and Children of Green Card Holders

The August 2013 Visa bulletin shows that the Family-based 2A preference category which refers to spouses and children of lawful permanent residents (LPR) is current for all countries.

This means that starting August 1, those who are in the U.S. may file for adjustment of status while those who are processing their immigrant visa application abroad may be scheduled for visa interview.

In announcing the visa number availability, the Department of State said that the F2A preference category will be expected to remain current for several months. Although there is a large number of F2A registrants, the Department of State explained that it had taken this step to generate an increased level of demand since not enough applicants have been actively pursuing final action on their case. This will ensure that all of its available visa numbers will be fully utilized.

The Department of State also said that at some point during Fiscal Year 2014 which covers October 1, 2013 through September 30, 2014 the cutoff date could be retrogressed as a corrective action. Note that in July 2013, the cutoff date was October 8, 2011.

In light of this development, beneficiaries of family-based 2A petitions, regardless of their priority date, should file their adjustment applications. Those who have no I-130 petition should concurrently submit their I-485 and I-130 petition.

A pending adjustment application, will allow them to remain in the U.S. and work until their application is adjudicated. They may also be allowed to travel.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he/she was in the U.S. on December 21, 2000.

The other family-based categories will not advance significantly from the July 2013 visa availability. F1 preference which refers to unmarried sons and daughters of U.S. citizens will advance by 3 months worldwide (9/1/06) and by 6 months for the Philippines (1/1/01).

F2B (unmarried sons and daughter 21 or older of LPRs) will advance by only a month worldwide (12/1/05) and none for the Philippines (12/22/02).

F3 (married sons and daughters of US citizens) will advance by 2 months worldwide (12/8/02) and 1 week for the Philippines (12/1/92) while F4 (brothers and sisters of U.S. citizens) will advance by 1 month worldwide (6/22/01) and 3 weeks for the Philippines (1/8/90).

There will be little or no change in the employment-based categories (EB) except for India’s EB2 category which will advance from September 1, 2004 to June 1, 2008. EB1, EB2, EB4 and EB5 will remain current. The EB3 for skilled workers and unskilled workers will have the same cutoff date of (1/1/09) worldwide but will advance by 3 weeks to 10/22/06 for the Philippines.

File Waiver If You Entered Under Different Name

Fraud or willful misrepresentation of a material fact is a ground of inadmissibility that prevents an alien from getting a green card. The act of entering the United States under a different name is an example.

However, the alien may apply for a waiver to forgive the fraud. To be eligible for this waiver, the alien must have a qualifying relative. The law considers only U.S. citizen or lawful permanent resident spouses or parents to be qualifying relatives. Children are not qualifying relatives for purposes of the waiver.

The alien must demonstrate extreme hardship to the qualifying relative in case of a finding of inadmissibility. Several factors are relevant in determining extreme hardship, including the qualifying relative’s family ties in the United States; political and economic conditions in the country of relocation; the financial impact of departure from the U.S.; and health conditions along with the unavailability of suitable medical care in the country of relocation.

Not only must these eligibility requirements be met, but the alien must also show that his/her case warrants a grant of waiver in the exercise of discretion. The negative factors must be balanced with the equities or the social and humane considerations in one’s case.

Obtaining a waiver therefore is not easy, but by no means is it impossible. In a case that our firm recently handled, we were able to help a client get his green card despite the misrepresentation he committed as he entered the U.S. with an assumed name more than thirty years ago.

Our client left the Philippines in the early 1980s to escape poverty and political strife, entered the U.S. using a passport and B-2 visa with a different name, and remained past his authorized period of stay.

Two years later, he met a fellow recent immigrant who was working as a nurse at a New York hospital and would later get her green card and then her U.S. citizenship. They fell in love, had children, and lived together as husband and wife ever since.

For almost three decades, our client kept secret his immigration status from other people until he neared retirement age. Unless he becomes a lawful permanent resident, all his hard work and perseverance since he arrived in the U.S. would be for naught. He had to come to terms with his past and decide whether to finally apply for a green card.

Faced with the possibility of being denied a green card if found ineligible for a waiver and eventually placed in deportation, he sought our firm’s assistance.

We showed the immigration authorities that his U.S. citizen wife would suffer extreme hardship whether she remains in the United States by herself or is forced to relocate to the Philippines to be with our client.

We submitted proof of her health conditions, including diabetes and hypertension, for which she was receiving top-notch medical care in the U.S., and compared that with the high cost of medicines and treatment in the Philippines. We pointed out that the wife has many family ties in the U.S., including her U.S. citizen children, while she no longer has family in the Philippines.

We also argued that relocation would cause financial hardship because she would lose her job at the hospital in the U.S. but most likely not get hired in the Philippines because of her age and the unfavorable labor market conditions for nurses there.

Our waiver packet included supporting affidavits and documentation to evidence the wife’s extreme hardship as well as our client’s good moral character.

Fortunately, we were able to convince the USCIS that the U.S. citizen wife would face extreme hardship if the waiver is denied and that our client was deserving of a favorable exercise of discretion.

Major Changes in Family Immigration Proposed in Senate Bill

In line with its goal of shifting the focus of immigration from family-based to skills-based, the Senate comprehensive reform bill proposes a number of major changes in the current family-based preference system.

The annual limit of family-based immigrant visas will be reduced from 226,000 to 161,000. The per country cap will rise from 7% to 15%.

The bill will eliminate the 4th preference category for brothers and sisters of U.S. citizens and limit the 3rd preference category to married sons and daughters who are under 31. The changes will take effect after the bill is passed so that petitions filed before that will continue to be processed. U.S. citizens should consider filing their petitions for these relatives now.

Under the current system, the 4th preference category is allocated 65,000 annual visa numbers. As of November 2012, the Department of State recorded 2,873,114 applicants, including 188,521 Filipinos, on the waiting list.

The 3rd preference category on the other hand with current annual allocation of 23,400 has a waiting list of over 830,000 applicants. The bill will allocate 25% of the worldwide level for this scaled-back category.

The first preference category for the unmarried sons and daughters of U.S. citizens will be retained. This category has a waiting list of 288,000 and has an annual allocation of 23,400. Under the bill, it will have 35% of the worldwide allotment.

Unmarried sons and daughters of lawful permanent residents who are classified under the F2B preference category will be allocated 40% of the worldwide level.

Spouses and children of lawful permanent residents currently under the F2A category will be upgraded to the immediate relative category and would not therefore be subject to visa number limitation. Under that category they would be allowed to adjust their status even if they have overstayed or worked without authorization. Under the current system, only the spouse, unmarried children and parents of U.S. citizens have this benefit.

Derivative beneficiaries of immediate relatives applying for green card will be allowed to immigrate with their parents unlike now where they have to be petitioned separately under a different category. This will prevent separation of the children from their parents.

The bill will also benefit the unmarried sons and daughters of U.S. citizens under 31 and unmarried adult sons and daughters of lawful permanent residents who are beneficiaries of approved family-based petitions. They will be eligible for V visas to enable them to live and work in the U.S. while waiting for their priority dates to become current.

Brothers and sisters of U.S. citizens and sons and daughters of U.S. citizens over 31 years will also be eligible but they will not be authorized to work and their admission may not exceed 60 days per year.

Other new provisions under the bill include raising the age of a stepchild from 18 to 21 for purposes of allowing sponsorship by the stepparent; raising the age requirement for adopted child from 16 to 18; allowing aged-out children to retain the priority dates of the original petition of their parents; and permitting lawful permanent residents to file for a fiance petition.

The current rules pertaining to termination or reinstatement of registration for an immigrant visa, retention of priority dates, automatic conversion of visa petitions, petition for orphans and widows and inadmissibility waivers will be modified.

Bill to Grant Legal Status to Undocumented Immigrants

The immigration reform bill which a bipartisan group of senators has been working on for months was finally introduced on April 17. The proposed legislation which revamps the whole legal immigration system gives preference to job skills rather than family ties. Hearings have been scheduled in the Judiciary Committee and the Senate is expected to vote on it by early June.

The bill, entitled Border Security, Economic Opportunity, and Immigration Modernization Act, provides for a pathway to citizenship to the 11 million undocumented immigrants in the country after a ten-year wait. Although the pathway to citizenship is not tied to border security, the bill sets “triggers” whereby the undocumented can adjust status only when border security measures are fully operational.

The bill creates a merit-based program which will allow individuals, both in the U.S. and abroad, to earn points based on education, employment, length of stay in the U.S., among others, and the person with most points are granted their visas. Around 120,000 up to 250,000 visas would be issued each year using the point system. Benefiting from the program will be talented individuals, individuals in the worker programs and those with family in the U.S. The proposed legislation will eliminate the backlog for family and employment-based immigrants.

Also, the bill addresses the need for farm workers and low-wage laborers with the new nonimmigrant visa called the W-Visa. This will allow foreign workers to perform labor or services in the U.S. for a period of three years. The spouse and minor children may accompany the principal and are authorized to work. The annual cap will depend on the unemployment rate.

The annual number of H-1B visas will be increased from 65,000 to 110,000. The cap may even go up to 180,000 in the future depending on the demand and unemployment rate. Spouses of H-1B workers will be allowed to work if the sending country provides reciprocal treatment.

The bill eliminates a number of visa categories. For one, it eliminates the diversity visa or visa lottery. There will only be two family-based categories and they will include only unmarried adult children, married adult children under 31 and unmarried adult children of lawful permanent residents. Visas will no longer be available to siblings of U.S. citizens. But the child or spouse of a lawful permanent resident will be considered “immediate relative” and thus exempted from numerical limit.

Also exempted from the annual limits are the derivative beneficiaries of employment-based immigrants, aliens of extraordinary ability, outstanding professors and researchers, multinational executives and managers, doctoral degree holders and certain physicians.

The pathway to citizenship laid out in the bill starts with an application for “Registered Provisional Immigrant Status” or RPI status. To be eligible, the undocumented must have been living in the United State prior to December 31, 2011 and must have been physically present in the U.S. since then. Application requirements include the payment of a $500 penalty fee, back taxes and processing fees.

Once granted the RPI status, noncitizens are considered lawfully present in the U.S. and can work and travel outside the country. They are however not qualified to receive Federal means-tested public benefits. The RPI status is valid for up to six years which is renewable upon proper application and payment of $500 penalty fee. To renew RPI status, the noncitizen must not have committed any act which would render him deportable.

The noncitizen under provisional immigrant status may adjust to lawful permanent resident status after ten years through the merit-based system. The young immigrants or the so-called Dreamers who were brought into this country illegally when they were still children and agricultural workers will be able to apply for their green cards after five years.

The noncitizen under provisional immigrant status must also demonstrate continuous physical presence in the U.S., payment of taxes, regular employment and knowledge of Civics and English to adjust status.

Pathway to Citizenship is Key to Genuine Immigration Reform

Providing a pathway to citizenship to the 11 million undocumented immigrants in the country remains the most contentious issue in immigration reform. Republican Senator Ted Cruz even termed it the “poison pill” that will kill any efforts towards passing a comprehensive immigration reform bill. He contended that even if the Senate passes the bill, he thinks that the House will never pass it.

The sentiment of Senator Ted Cruz reflects the stand of the majority of his Republican base. According to him, the only way that a comprehensive immigration reform bill can pass the House is to abandon the ‘path to citizenship’ for the undocumented immigrant. It should focus instead on securing the border and streamlining the immigration process.

Meanwhile, support for providing a path to citizenship for undocumented workers in the country is growing with 6 out of 10 Americans supporting it based on a recent Washington Post-ABC poll. Democratic support reached an all-time high of 73 percent.

The support within the Republican Party, however, remains low. The support is so low among Republicans that some say Senator Marc Rubio’s involvement in the immigration reform deal might hurt his chances of becoming the GOP presidential nominee in 2016.

According to political observers, the chances that Senator Rubio will walk away from the reform legislation proposed by the ‘Gang of Eight’ which is composed of four Democratic and four Republican Senators is slim. Although Senator Rubio’s support to provide a path to citizenship may cost him the ire of primary Republican voters, his involvement is seen to win back support of Latino voters who withdrew support for the GOP for its anti-immigrant position.

Recently, the ‘Gang of Eight’ announced that it has completed its comprehensive immigration reform bill. A bipartisan group in the House is also preparing its own version of the bill. Both House and Senate immigration plans offer a path to citizenship.

The House version is said to provide three paths to citizenship. One path is offered to young immigrants or the so-called Dreamers who were brought into this country illegally when they were still children and agricultural workers who play a critical role in the economy.

The second path is offered to immigrants who entered the country illegally but whose family ties or employment relationships allow them to apply for legal status. The barrier including the three to ten year ban will be waived or lifted. They will be required to return to their home countries to apply for legal status and comply with other requirements.

The third path is offered to all other undocumented immigrants who may apply for “provisional legal status” so long as they have not committed any crime and they comply with requirements such as they payment of fines and learning English. Under the House version, it is said that the undocumented immigrants will have to wait ten years to be issued their green cards and wait another five years to apply for citizenship.

In order to fix the broken immigration system, the dilemma facing 11 million undocumented immigrants has to be addressed. Indeed, the pathway to citizenship, no matter how long or difficult, is essential to genuine immigration reform. This is the reality that the GOP-run House has to contend with unless they want a remake of the 2012 presidential elections in 2016.

Immigration Reform Bill Falls Behind Schedule

The push for comprehensive immigration reform has gained huge momentum since President Obama announced his proposal early this year. The call for an overhaul of our immigration laws has grown louder, with even business and labor groups uniting in support of a law mending our broken immigration system.

Of late, however, there have been signs of obstacles in the way of reform. The “Gang of Eight” Senators who had promised to have a bill by mid- March recently expressed doubts that they could meet their self-imposed deadline, although they hope to release one after their return from the recess, which runs from the last week of March to the first week of April.

Some believe that this is a problem. Legislative business is placed on hold during a recess as members of Congress go home and visit their constituents. Back in 2007 when immigration reform was last on the front page, angry town hall debates and opposition to amnesty unnerved politicians and derailed support for reform.

There are senators who think that the kind of opposition they faced in 2007 is a thing of the past. In a town-hall meeting held in his home state of Arizona last month however, an angry crowd fired criticism at Sen. John McCain so much so that the senator, a member of the bipartisan group working on immigration reform, had to remind the people to be civil. This backlash is seen as a portent of things to come.

According to a Bush administration official involved in the last effort, the longer the time between the release of the bill and voting, the lesser the chance of the bill being passed.
On the other hand, one of the senators, Sen. Lindsey Graham, believes that even if the bill is finished before the recess, releasing it without getting voted on is not a good idea. To Republican Senator Marco Rubio of Florida, it is better to “do it right than do it fast”.

Another development that complicates the effort which otherwise enjoys broad support is the piecemeal approach adopted by some members of the House of Representatives. Some Republican Congressmen seem to believe that a series of smaller bills instead of a comprehensive bill is the better way. This fragmentary approach runs counter to the party’s current immigration platform.

Further still, the idea of immigration reform could be a hard sell to the many Republican House members that come from overwhelmingly white districts.

One of the most divisive issues is the pathway to citizenship of undocumented immigrants, which for President Obama and Democrats is an essential part of immigration reform. The bipartisan Senators’ plan would include a path for undocumented immigrants to become citizens, while other politicians prefer to withhold citizenship and support a plan that stops at permanent residency.

Senator Rubio advocates a plan that would give these immigrants the chance to apply for citizenship someday after many years in some kind of a nonimmigrant status or for a much longer time than what his party mates in the Gang of Eight believe is sufficient. On the other hand, his mentor and Florida Governor Jeb Bush – brother and son of past U.S. Presidents – would deny the immigrants the possibility of citizenship. Both Sen. Rubio and Gov. Bush are potential Republican presidential nominees.

As the battle for immigration reform unfolds, we will witness if our lawmakers are capable of rising to the challenge. They must put aside their differences, overcome these hurdles and work together towards a goal that serves the national interest.

Improved Protections Under VAWA for Battered Immigrants

The House finally passed the Senate’s bipartisan bill reinstating and extending the Violence Against Women Act (VAWA) for another 5 years. The bill passed after many months of long and heated debates with 87 Republicans and 199 Democrats voting for the bill. This was after the Republican version of the bill was defeated.

Since its passage 19 years ago, various provisions have been incorporated in the Violence Against Women Act (VAWA) to provide better protection to vulnerable immigrants mostly women and children from the crimes of domestic violence, sexual assault, dating violence and stalking.

When it was initially passed in 1994, VAWA allowed battered immigrants to self-petition. The process provided victims of battery and extreme cruelty to file a petition independent of their abusive spouse/relative.

When it was later reauthorized in 2000, it created the U and T visas which protected victims of violent crimes and sexual assault or trafficking, respectively. The U visa allowed victims of qualifying crimes, mostly undocumented women and children who are victims of domestic abuse and rape, to remain legally in the U.S. and assist in the investigation and prosecution of the crimes. These protections were further expanded when the VAWA was reauthorized in 2005.

With the passage of this bipartisan Senate bill this year, no new immigration benefits are created but improvements to the current immigration protections are introduced. The bill is in stark contrast to the failed bill introduced by the Republicans which did not give enough protections to gay communities, Native Americans and undocumented residents against sexual and domestic abuse.

One of the more important provisions under the bill is preventing children of U visa holders from aging out. Under the current law, aliens who file for U visa may include their spouse and their children below 21 years of age in the petition. The bill clarified that the children are still qualified to receive immigration benefits under their parent’s petition even if they turn 21 years of age and the application is still pending.

The bill also includes “stalking” as one of the qualifying crimes under the U visa. Under the current law, qualifying criminal activities under the U visa are crimes which vulnerable immigrants are often targeted such as sexual exploitation, extortion, domestic violence, among others.

Another significant improvement is protecting foreign fiancé(e)s/ spouses of U.S. citizens by providing vital disclosures regarding any violent criminal histories of sponsoring U.S. fiancé(e)s/spouses and as well as other information they need to protect themselves from entering abusive marriages.

The bill further provides that self-petitions under VAWA will extend to surviving minor children of the self-petitioner when the abusive spouse dies after filing of the petition. The bill also extends hardship waivers for conditional residents in case of invalid bigamous marriages of U.S. citizen or LPR spouse. It also clarifies the individuals who are exempt from public charge inadmissibility grounds which include the VAWA self-petitioner, a U visa petitioner or holder, among others.

The reauthorization of VAWA with its improved protections will without doubt further serve and safeguard vulnerable immigrants from being victims of sexual abuse, domestic violence and other crimes. The bill is now on its way to the President’s desk where it will be signed into law.

Immigrant Visa Issued Despite Drug Use

One of the grounds for denying an immigrant visa applicant relates to past drug use. Under the law, a person is not admissible if he admits having committed acts which constitute the elements of a violation of drug laws in the U.S or in any other country.

It appears, however, that consular officials have become more lenient with visa applicants who have admitted past drug use.

Previously, consular officials not only denied the visa application but they also advised the applicant who had admitted the drug use that he was barred from the United States permanently and that at times no waiver was available.

This was the situation that one of our recent clients found himself in. He was the derivative beneficiary of his wife’s employment-based petition. In 2005, he applied for an immigrant visa at the visa unit of the U.S. Embassy in the Philippines but he was refused the visa because of his admission of past drug use. At the time, he and his wife were not represented by counsel.

He made the “admission” of drug use at the medical examination in St. Luke’s in Manila. The panel physician asked him if he had used drugs. Perhaps thinking that it happened so long ago and only once, he responded that he used marijuana and shabu, which is a form of methamphetamine, way back in college or over ten years prior. It should also be noted that he had no criminal record whatsoever.

At the visa interview, the consular officer dropped a bomb on him and said that he was banned and blacklisted from entering the United States, alluding to his past drug use which he admitted at his medical examination.

Thus began his seven-year separation from his wife who went on to reside and work in the U.S. But she was not discouraged. As a green card holder, she filed an immigrant visa petition for him and their children who were also left behind. She remained hopeful that she would someday be reunited with him in the U.S.

After her I-130 petitions were approved last year, the wife asked us to represent her husband, given his previous visa denial due to his admission of drug use. In our letter to the U.S. Embassy in Manila, we explained why the applicant was not ineligible for a visa.

When the drug use is only a mere experimentation, it is not drug abuse as would make the person inadmissible. A single use of drugs constitutes experimentation. In this case, the applicant engaged in a one-time use of drugs which occurred many years ago.

Neither did he develop substance dependence. He was not a drug addict. His one-time use could not and in fact did not result in a compulsive long-term use or any physical, behavioral or psychological problems.

Even though he did admit his drug use to the panel physician, his admission was not of the kind that should bar him from entering the U.S.

Applying a test used by the Board of Immigration Appeals, we argued that the applicant’s admission was not valid for purposes of making him inadmissible because he was not given an adequate definition of any crime or drug offense, including all essential elements thereof, at his medical examination.

The applicant had no arrest, criminal charge or conviction in connection with any crime involving drugs. In addition, the applicable drug law in the Philippines imposed only rehabilitation for a first offense of drug use.

The applicant was able to overcome the earlier finding of inadmissibility. He recently received his immigrant visa and will be reunited with his wife very soon.

Immigration Options of the Investor

Much press has been given to immigrant investors in recent years. One of the main reasons why the EB-5 immigrant investor program has captured the attention of so many prospective immigrants is the low demand for visas under this category relative to the heavily backlogged third preference (EB-3) and, for some countries, the second preference (EB-2) categories.

At present, the EB-5 program presents one of the fastest routes to a green card, be it through the regular program which requires a $1,000,000 direct investment or the regional center or pilot program, in which an indirect investment of $500,000 is usually sufficient.

However, there are avenues that have long existed for other types of investors, particularly those who do not seek permanent resident status in the U.S.

Immigration law and regulations allow treaty traders (E-1) and treaty investors (E-2) to enter the U.S. for specific purposes as non-immigrants. However, one main distinction between them and most non-immigrants is that they can extend their stay almost indefinitely. After an initial period of two years, E-1 traders and E-2 investors can renew their stay every two years for an unlimited number of times if they maintain an intention to depart the U.S. at the expiration or termination of their status.

An E-1 treaty trader is a national of a country with which the U.S. maintains a treaty of commerce and navigation who enters the U.S. solely to engage in international trade. Trade is defined as the existing international exchange of items of trade for consideration between the U.S. and the treaty country, and includes goods, services, international banking, insurance, transportation, tourism, technology and some news-gathering activities.

The trade carried on by the treaty trader must be substantial, meaning that it must be sizable, sufficient to ensure a continuous flow of trade between the two countries. Substantiality cannot be based on a single transaction no matter how monetarily valuable it is. The trade must also be principally between the U.S. and the treaty country, i.e. more than 50% of the total volume of the trade must be between the two countries.

An E-2 treaty investor, on the other hand, is one who is seeking to enter the U.S. to direct and develop a business in which he has invested, or is in the process of actively investing, a substantial amount of capital. Like the E-1 treaty trader, the E-2 treaty investor must also be a national of a treaty country.

For E-2 purposes, substantiality is determined by weighing the amount of funds invested against the total cost of purchasing or establishing the enterprise. It is an amount considered sufficient to ensure the investor’s financial commitment to the enterprise’s success.

A higher proportion of investment is required of small businesses for the investment to be substantial. For instance, while an E-2 investor may be allowed to fund only 10% of an investment worth $10 million, for an investment of less than $100,000, the E-2 investor would normally be required to provide the entire investment.

The investment must be in a bona fide enterprise or one that is a real, active commercial or entrepreneurial undertaking. It may not be idle or passive investment, such as in stocks or undeveloped land. Furthermore, the E-2 investor’s investment cannot be marginal or solely to provide for himself and his family. A marginal enterprise is one that does not have the capacity at present or within five years to generate more than enough income for the investor and his family.

An employee of the E-1 trader and E-2 investor may qualify for the same classification if he is of the same nationality as the treaty employer and if the position is primarily executive or supervisory in character, giving the employee ultimate control and responsibility for the operation of the enterprise. If the employee is employed in another or lower capacity, to be eligible for E-1 or E-2 classification he must have special qualifications or skills essential to the operations of the business.

E-1 traders and E-2 investors, as well as their employees, may be accompanied or followed by their spouses and unmarried children below 21 years old. The dependent family members need not be of the same nationality as the trader, investor or the E-1/E-2 employee.

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