News India Times
May 1, 2015
24
IMMIGRATION
By: Michael Phulwani, Esq., David H.
Nachman, Esq. and Rabindra K. Singh,
Esq., Immigration Lawyers at the
Nachman Phulwani Zimovcak (NPZ) Law
Group, P.C. - VISASERVE (NJ, NY,
Canada, and India).
"Defining Partnership
of the 21st Century":
E Visa Possibility For
Indian Citizens?
U.S. immigration laws specifically au-
thorize the issuance of E visas to nationals
of a country that has qualifying treaty of
commerce and navigation with the United
States. Such qualifying treaties may include
treaties of Friendship, Commerce and Navi-
gation (FCNs) and Bilateral Investment
Treaties (BITs). A BIT is an agreement estab-
lishing the terms and conditions for private
investment by nationals and companies of
one state in another state.
This type of investment is called Foreign
Direct Investment (FDI). BITs acts as a tool
in protecting the FDI in a volatilemarket.
Especially, they protect foreign investments
in light of the risks that foreign investors
face inmany parts of the world, including
cancellation of concessions, leases, or li-
censes; expropriation of shares; windfall,
royalty, and other taxes; exchange rate risks;
prohibition on the repatriation of profits;
political or court interference; environmen-
tal regulation and remediation responsibil-
ity; land rights issues; riots; and protests, to
name but a few.
Faced with such risks, and given the like-
lihood that local courts and laws may not
provide a speedy, effective and unbiased
means of resolving investment disputes,
BITs provide foreign investors with an addi-
tional level of protection under interna-
tional law.
There are two types of E visas: Treaty
Trader visa (E-1) andTreaty InvestorVisa (E-
2). The E-1 visa is applicable to a treaty na-
tional entering the U.S. solely to carry on
substantial trade, which is international in
scope and principally between the U.S. and
the foreign state. For E-1 visa, the treaty na-
tional must be an essential employee, em-
ployed in a supervisory or executive
capacity, or possess highly specialized skills
essential to the efficient operation of the
firm. Ordinary skilled or unskilled workers
do not qualify. The E-2 visa applies to a
treaty national [or an entity owned by the
treaty national(s)] to develop and direct the
operations of an enterprise in which he or
she has invested or is actively in the process
of investing a substantial amount of capital.
For E-2 visa, if the applicant is not the
principal investor, s/hemust be considered
an essential employee, employed in a su-
pervisory, executive, or highly specialized
skill capacity.
There is no bright line test of what would
constitute a “substantial” amount of capital.
The U.S. State Department acknowledges
that the costs of investing in a business can
vary dramatically, depending on the nature
of the business: manymillions to buy an au-
tomobile factory; and only a relatively small
sum to set up a consulting firm. Further, the
general rule requires that over 50% of the
total volume of the international trade con-
ducted by the treaty trader regardless of lo-
cationmust be between the United States
and the treaty country of the alien’s nation-
ality.
For a business to qualify for Treaty In-
vestor visa, apart frombeing a national of
the treaty country, at least 50 percent of the
business must be owned by person(s) with
the treaty country’s nationality.
Additionally, besides the requirement of
investment being substantial, the invest-
ment must be a real operating enterprise,
an active commercial or entrepreneurial
undertaking. A paper organization, specula-
tive or idle investment does not qualify. Un-
committed funds in a bank account or simi-
lar security are not considered an
investment.
E visas have certain advantages over
other nonimmigrant visas. Unlike the L-1
visa, the E visa categories do not require the
setting up of a branch, subsidiary or parent
in the U.S. of a foreign entity. The E visa cat-
egory also has less government regulations
compared to the H-1B visa category. There
is no prevailing wage requirement, labor
condition attestation, and posting and pub-
lic access file requirements. Neither there is
a cap on the initial grant of E visas nor cap
on E visa extensions.
Both E-1 and E-2 visa holders are initially
granted stay of two years with the possibility
of unlimited extensions. All E nonimmi-
grants, however, must maintain an inten-
tion to depart the United States when their
status expires or is terminated. Further,
Treaty traders/investors and employees
may be accompanied or followed by
spouses and unmarried children who are
under 21 years of age and can get work au-
thorization. More so, their nationalities
need not be the same as the treaty investor
or employee. Note that since E visas are not
dual intent visas, an alien cannot pursue
permanent residency (green card) applica-
tion while on E nonimmigrant status.
Although United States has entered into
treaties with some of the India’s neighboring
states (Pakistan, Sri Lanka and Bangladesh),
at present, India does not have an FCN
treaty, BIT or equivalent treaty with the U.S.
In the past, India and the United States have
engaged in BIT negotiations to enhance
trade relations and investment flows. This
treaty under negotiation, which has been
languishing since 2008, aims to protect and
promote investments and guarantee inter-
national minimum standards in the treat-
ment of foreign investments.
While on the one hand an investment
treaty between India and the U.S. would
provide important protections to U.S. in-
vestors fromarbitrary, discriminatory or
confiscatorymeasures, and would be en-
forceable by independent international ar-
bitration. On the other hand, such a treaty
could also help facilitate additional invest-
ment in infrastructure and other priorities
in India where investment is badly needed.
BothWashington and NewDelhi want to
embrace the idea of BIT but so far they have
not been able to reach a common ground
and gather political support.
The enthusiasmof the United States in
entering a BIT with India can be sensed
through a letter sent by themembers Sen-
ate India Caucus, U.S. Senate, urging the
President Barack Obama to expedite the on-
going discussions about the treaty between
the U.S. and India. The letter, in pertinent
part, states that: “Many countries have al-
ready recognized and acted upon the in-
credible economic opportunities India
presents. India has completed investment
agreements with 80 countries including all
major European nations, ASEAN, Japan and
South Korea. In order to overcome the com-
petitive disadvantage already facing Ameri-
can companies in the Indianmarketplace, it
is imperative that the United States move
forward quickly to negotiate and conclude
this treaty…”
Continued on nextweek
