An Opinion Piece by Kelly Brackley: The Trump Effect - Get Filing Those Immigration Applications

To the great surprise of many, Donald Trump, founder of The Apprentice reality show, was elected President by the United States on November 9th, 2016. Despite no background in politics, he defeated the Democrat candidate, Hillary Clinton. No matter what your political stance is on the subject, it marks a day in history. Arguably another prime example of the protest vote, Brexit-like, a vote against the establishment.

What has Trump said on US Immigration?

President-elect Trump has made many remarks on immigration, his main focus being on deporting the undocumented and building a wall between the US and Mexico, paid for by Mexico! He has pledged to commence the process of “removing the more than two million criminal, illegal immigrants,” repeal Obama's “amnesty” executive orders, triple the number of Immigration Customs and Enforcement (ICE) Officers, with the prime objective of prioritising jobs, wages and the security of US citizens.

He is surrounded by Republicans who have fairly strong anti-immigration views, such as Senator Jeff Sessions (R-AL) and Secretary of State of Kansas, Kris Kobach. In January 2017, the nation's political leadership will turn very much Republican, with not only the White House but also both houses of Congress won by Republicans.

What is likely to happen?

Initially – likely very little at all. Of course no one actually knows what will happen, but it is likely that Trump will seek to remove undocumented immigrants that have criminal records. Two million that he quoted is inaccurate, since there are allegedly 178,000 undocumented immigrants with criminal records.

Tripling the number of ICE officers will cost billions. Where is he going to get the money from? Nice plan, without any thought on how this will be paid for. Without the increase in ICE officers and money spent on detaining “criminal” immigrants, how can this be achieved? Of course he can try, but he's unlikely to be able to justify the amount of money that is required in order to achieve this. Likewise regarding the wall, although apparently Mexico will pay for it!

I have no doubt that Obama's Executive Orders will be repealed. They were a short-term plan until comprehensive immigration reform was achieved. So it doesn't look good for the undocumented immigrants, particularly those with a criminal record. I do not envisage that it will have a huge impact on any of our typical clients.

What is likely to happen to Corporate/Business/Investment Immigration?

This is the tricky one as no one knows what will happen, but it is my opinion that Trump and the Republican's primary focus, will be on deporting undocumented “illegal” immigrants from the US.

Trump does talk about keeping jobs for Americans, so he is unlikely to want to increase the number of available H-1B work visas for instance. This is already capped and makes it very difficult for US companies to directly hire foreign national employees.

From a fiscal Republican standpoint, I cannot see him having a problem with most corporate immigration, to include the expansion of business to the US (L-1 intra-company transfer visas) and encouraging an increase in trade and investment in the US (E-1/E-2 Treaty Trade/Investment visas, as well as EB-5 Investment Green Cards).

The speculation is that Trump will likely come down hard on the L-1B Specialized Knowledge and E-2/E-1 Essential Employee visas. What makes this individual better than an American employee? As an Immigration Attorney, I have generally faced this anyway, so we as a firm are prepared to know what qualifies an employee of a company for these types of visas.

I do not think that we will see much of a change to the E-1 Treaty Trader or E-2 Treaty Investor visa qualifications. This should also be the same for an L-1A Executive or Manager, particularly for new businesses, that require this executive or managerial knowledge of the parent company for US expansion.

In light of not knowing how immigration will be effected come 2017, our advice is to file those applications ASAP. Get the approval you require prior to any changes in immigration law, or behaviour by the US Citizenship and Immigration Services (USCIS) and the Consulate. In my opinion, however, I do not think our current and future clients will be greatly effected by President Trump. I do not believe that he holds such an anti-immigration position regarding businesses expanding to the US or individuals/organisations investing in the US. 

If you would like to speak to an experienced US Immigration Lawyer regarding a US visa, please call us on +44 (0)203 102 7966 or email info@baimmigrationlaw.com

The US Election Outcome: What Happens Next

In the early hours of yesterday morning, we all found out that Donald Trump has defeated Hillary Clinton and will succeed President Obama as the 45th President of the United States of America. This outcome has surprised many, leaving questions as to what will happen in both American politics and US Immigration in the upcoming years.

What will change? That is still quite unclear, but come 2017 and Mr Trump being sworn in with a Republican majority in both the House and the Senate, we can only expect that the face of US Immigration will see changes and new challenges. Until January, it is business as usual. 

This evening I will attend a recording of the BBC television show Question Time where the Vice President of Republicans Abroad will be a panellist answering questions about the upcoming administration's plans. This may lend us all some insight into what will happen over the course of the next four years.

*Check back on the blog later this afternoon when US Immigration Lawyer Kelly Brackley will write an opinion piece on where she sees US Immigration going under a Trump administration.*

If you would like to speak to an experienced US Immigration Lawyer regarding a US visa, please call us on +44 (0)203 102 7966 or email info@baimmigrationlaw.com.  

E-2 Investment Visa FAQs

The E-2 treaty investor visa is one of the most useful and simultaneously complex categories of nonimmigrant visas. Here is a list of the most common questions we receive from clients. These answers are not legal advice but educational in nature and meant to aid those who are attempting to understand whether or not the E-2 visa is right for them. Please contact us for individual, tailored advice for your situation.

1. What is substantial investment? 

Substantial investment is defined as an amount that is:

(1)  Substantial in a proportional sense, ... i.e., substantial in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;

(2)  Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

(3)  Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E-2 visa purposes. [9 FAM 402.9-6(D)]

But what does that mean? And how do you know if you have invested enough to pass the threshold?

Simply put, substantial investment is one of the trickiest points of applying for an E-2. The embassy or consulate will look at many factors in deciding what it means including the type of business started, how many people it plans to support, and where it is located. It will compare this amount with how much of the overall costs the investor has invested. The lower the overall start-up costs needed based on the business, the higher the percentage of funds the investor should seek to commit.

A good US Immigration Lawyer can go through your investments and advise on how to best spend money. To best utilise his or her expertise, I would advise instructing a lawyer early in the process and creating a timeline and game plan for investment. In choosing whom to instruct, it is often worthwhile to hire an attorney with familiarity of the embassy or consulate where you will be applying.

For more on substantial investment, please read our blog post solely on the topic here.

2. What makes a business marginal?  

One criterion of an E-2 application is that a business may not be considered marginal. This means that the business must do more than simply provide financially for the investor and his or her family.

To look at whether or not a business is marginal, the E-2 officer will mainly assess two factors - profits and employees. He or she will be looking for the following: whether the investment will expand job opportunities, generate other sources of income, and generate income substantially above what would be considered a living, and that the investor will not work simply as a skilled or unskilled labourer.

If the business is new (as many are), a detailed business plan with a five year projection of profits and employees hired must be included. 

For more on marginality, please see our blog post on it here. 

3. Does my business need to be up and running at the time I apply for an E-2 visa? 

Yes. At the time of filing, the company must be real and operating. This means that the business must have all of the applicable local, state and federal licenses.

4. Can my spouse and children get visas as well? 

Yes, on an E-2 visa the spouse and minor children (unmarried children under the age of 21) of an E-2 visa holder may also apply for derivative visas. Important for many families, the spouse may also apply for a work permit (EAD) once in the United States. The EAD card generally poses no restrictions on the type of employment.

If you and your spouse are both potential E-2 visa holders, it may serve you well to consider the individual earning potential of each of you before deciding who should apply for the visa. 

5. What kind of business can I run with an E-2 visa? 

The E-2 visa is quite flexible when deciding what type of business to run. Both service and sales companies are eligible for E-2 registration.

One limitation to businesses is that it must not be a passive investment, i.e. simply buying property or stocks. It is also worth noting that nonprofit associations are not commercial enterprises so will not qualify for E-2 status.

6. How long is the visa good for? 

Upon approval, the visa will be initially granted for anywhere from 1-5 years. For small businesses, the London embassy generally grants an initial approval of 1-2 years.  Extensions are for 5 years at a time. There are currently no limitations on extensions. 

 More questions?

It may be that the E-2 visa isn't the right visa for you or your company. For instance, if your company already has substantial trade with the US, you may qualify for an E-1 Treaty Trader visa.

To speak with an experienced US Immigration Lawyer about the E-2 treaty investor visa, please email info@baimmigrationlaw.com or call us on  +44 (0)203 102 7966

UK Exporters in a Post-Brexit World

This week City AM wrote about how British Businesses should look to the American Dream in Post-Brexit world. The pound falling in value has created an increase in US demand for UK products. And that is a very good thing for those British businesses who are looking to expand into the US. 

Does your business export more than 50% of its international goods or services to the US? Then it may be eligible for an E-1 treaty trader visa, where businesses from treaty trader nations like the UK are able to set up US branches. 

If you do not meet the 50% threshold, other potential visa options are the E-2 treaty investor visa, or the L-1 new office intracompany transfer visa. Or your company may be eligible for more than one visa category - in which case, sitting down with a US Immigration Lawyer to learn which is the right way to go should be your first step. 

To speak with an experienced US Immigration Lawyer about options for expanding your business into the US, please email info@baimmigrationlaw.com or call +44(0)203 102 7966

E-2 & E-1 Visa Processing in London: E-Filing

This week, the US embassy in London will start accepting E-1 treaty trader and E-2 treaty investor visa applications electronically. Previously, application binders were posted to the embassy, but now they must be submitted online via email. 

To speak with an experienced US Immigration Lawyer about submitting an E-2 or E-1 application, please email info@baimmigrationlaw.com or call +44 (0)203 102 7966

Setting Up a Business in the US: FAQs

Please welcome guest blogger John Gordon of USA Corporate Services Inc. who answered our clients' frequently asked questions about the corporate and logistical sides of setting up a business in the US.

Company formation

What are the main considerations when choosing how to structure a business?

The primary consideration is knowing what you are setting out to do, and where you will be doing it. Will you be doing business in the US, or outside? If in the US, will you need to apply for visas for the owners and/or directors? Do you understand how the federal system works in the US, and when to worry about federal laws and/or state laws? Will you need to set up a bank account in the US? If so, can you get a visa to visit the US to open it? If you can’t get a visa, is there a bank outside the US that can help you set up a USD account?

How does a non-resident generally decide where to open their new business?

If the company will be owned and managed from outside the US, then setting up in Delaware as an LLC is the best option, for price, convenience and simplicity of compliance. If the company will be operating from a location within the US, then setting up a company in the state where the business is located is best, unless:

1.The company will be looking to obtain venture capital funding.

2.The company will be operating across several states.

3.The company is not confident that the first location will work out, or will likely moving to a different state.

In these situations, setting up a company in Delaware, then having it registered to do business in the state where it will start doing business is best.

What types of filings are needed in order to set up a new business?

In general, a company is set up by filing its Articles of Incorporation with the Secretary of State of the chosen state. After the company is formed, it will need to obtain a federal Employer Identification Number, or EIN, in order to open a bank account and conduct business. Each state makes up its own rules for setting up companies, so there are exceptions to these general rules, and the names of formation documents are often different.

Once the basics are taken care of, then there may be more documents to be filed. For example, companies that will be selling to consumers may have to obtain a sales tax certificate from states where they have a presence.

Bank Accounts

May a non-US resident open a corporate bank account without a Social Security Number (SSN)?

Yes, but most banks are reluctant to open such accounts. Non-resident owned companies are considered high-risk, and even if a bank is willing to open an account it may decide to close such an account without notice or reason if their Compliance Department feels that the company has handled its account in a “risky” way. Non-resident owned companies need to be extremely sensitive to how its transactions will be perceived by the bank, or by the US banking authorities.

What should one be looking for in selecting a bank?

A robust online-banking system is a must, but also a willingness to open and maintain accounts for non-resident owned companies. When seeking out a bank, the business owner needs to make absolutely sure that the banker is familiar with the bank’s protocols for such accounts. Since bank representatives are paid to sell their banks’s products, that is what they do: sell products. It is only later find out that they cannot answer key questions from their Compliance Department, and then the account gets closed without notice.

The Process

How long does it generally take to fully open a business in the US?

Since each state handles corporate filings differently, and many offer different filing speeds for different fees (naturally, faster filing costs more), there is no consistent answer across the US. In general, you can get a company filed in one day, if you pay the extra fee. Some states do not have expedited filing, or like California, charge a high fee for faster service, and can take several weeks before filing the incorporation documents.

After formation, it may take several weeks to obtain a tax number for a company whose owners do not have a Social Security Number.

What is the biggest potential issue that you see with non-resident clients who are starting new businesses in the US?

The single biggest-problem is probably under-financing. The US is an expensive country in which to do business, and many companies come here believing that because the US business environment is relatively open, it will be easy and fast to make money. The stumbling block is not realizing that the more open business environment means more competition and less room for error. With sufficient capitalization, the company can afford some mistakes while adapting to the new environment.

The next biggest problem is lack of understanding of the US federal system, with federal laws, state laws, and local laws. There are taxes of all kinds at different levels of government, including franchise taxes, sales taxes, income taxes… As a company grows it may also have to learn what to do when you trigger having to register to do business in different states.

Another issue that we have encountered from clients from very different countries is understanding the practical meaning of the US cultural belief in “individual responsibility.” In practice, this means that although you may hire an attorney to handle your legal matters, and an accountant to handle tax and financial matters, a company’s management is held responsible for its actions, and cannot say that “we didn’t know because that was being handled by our attorney/accountant/consultant.”

To speak to an experienced US Immigration Lawyer about starting a business in the US, please email info@baimmigrationlaw.com or call us on +44 (0)203 102 7966

Update: EB-5

On September 9th, Representative Bob Goodlatte (R-VA) introduced the American Job Creation and Investment Promtion Reform Act of 2016 (H.R. 5992), which would reauthorize the EB-5 Regional Center Program. H.R. 5992 will be marked up in the House Judiciary Committee today.

October 5th Event: How to Immigrate to the US through a Franchise Investment

We are pleased to announce that B&A Immigration will be co-hosting a free event in London alongside Visa Franchise and Gelato-go on October 5th at 7:00 pm. 

Our section of the evening will include a talk on visa options for potential investors, including L-1, E-2 and EB-5 visas.

 Visa Franchise will be presenting on the US franchise market, as well as franchises that qualify for an investment visa.

Gelato-go will bring its first-hand experience with running franchises in the US.

For more details and to register (places are limited), please click here.

US Visas for Artists and Entertainers

A lot of our clients in this field expected that the visa process would be relatively straight forward. In general, they couldn't be further from the truth.

The scenario is as follows: A US producer or agent has contacted the individual with an acting or performance opportunity, but how can they get to the US? Perhaps the agent or producer has no knowledge of US visa requirements and they, therefore, ask the individual to obtain their visa first. This is unlikely to be possible, unless that individual is eligible for an employment-based (EB-first category) green card, i.e. permanent residency based on their extraordinary ability.

How do I get a US visa as an artist or entertainer?

Prior to April 1st, 1992, artists and entertainers could obtain an H-1B Specialty Occupation Visa. This allowed for an employer/agent to sponsor them for an employment visa. Since 1992, however, the majority of actors and entertainers are governed by the qualifications of “O” and “P” visas.

What is an O Visa?

An O-1B visa may be applicable here. Where an individual has either:

• Extraordinary Achievement (motion picture and television field); or

• Extraordinary Ability (all other theatre actors, artists and entertainer).

Artists and entertainers outside of the motion picture or television field must meet the threshold of "extraordinary ability," which means, distinction. Distinction is a high level of achievement in the arts, evidenced by a degree of skill and recognition substantially above that normally encountered. A person described as prominent is renowned, leading or well known in the field of arts.

A separate standard of "extraordinary achievement" applies to those in the field of motion picture or television. This term means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognised as outstanding, leading, or well-known in the motion picture or television industry.

What is a P Visa?

These visas are relevant to groups or individuals in the entertainment field:

• P-1 visas are relevant only to entertainers who perform as members of an entertainment group for a particular performance or event. The entertainment group generally must be an “internationally recognized entertainment group.”

• P-2 visas concern a reciprocal exchange program for groups or individuals between a foreign-based and US-based organisation that are engaged in the temporary exchange of artists and entertainers. For instance in the UK, there is Equity, with the corresponding US organisation – Actors' Equity.

• P-3 visas apply to culturally unique performers. To qualify for P-3 status, artists or entertainers must be coming to the US primarily for cultural events, to further the understanding or development of the culturally unique art form.

Are there any Other Non-Immigrant Visa Options?

Not strictly speaking, unless the individual seeks a J-1 internship or training program in the entertainment field. They would, however, need to meet the relevant J-1 requirements.

If the event or performance was seasonal and temporary in nature, it may be that the individual qualifies for an H-2B Temporary Non-Agricultural Worker visa. The difficulty here, would be that it must be shown that there are not enough US workers who are able, willing, qualified, and available to do the temporary work. It must also be shown that by employing H-2B workers, this will not adversely affect the wages and working conditions of similarly employed US workers.

A final potential non-immigrant visa option is to go down the route of an E-2 investment or L-1A new office intra-company transfer visa. The individual, however, would need to set up a business in the US in this field. This is more likely to be a more viable option for existing business owners in this field. For instance, a UK production owner looking to expand to the US.

What is an EB-1 Extraordinary Ability Green Card?

A green card is an immigrant visa (permanent residency), so that the individual does not have a visa that ties them to a specific job, event or performance.

The EB-1 extraordinary ability classification is for people who are recognised as being at the very top of their field and who are coming to the US to continue work in that field. To establish eligibility, you must demonstrate sustained national or international acclaim and that your achievements have been recognised in the field of expertise. Generally speaking, this may be demonstrated by obtaining a major internationally recognised award, e.g. Nobel Prize. Otherwise you must meet other requirements, which can be discussed with an immigration attorney in more detail.

If you have any US immigration questions regarding obtaining an O-1, P, H-2B non-immigrant visa, as well as an EB-1 Extraordinary Ability Green Card, please contact us on the below. Please note that these visas are not restricted to entertainers. For instance, the P visas are also applicable to athletes.

info@baimmigrationlaw.com

+44 (0)203 102 7966

www.baimmigrationlaw.com

USCIS Drafts New Rule for Entrepreneurs

On August 26, 2016, USCIS announced that it would be proposing a draft rule  which would implement the Secretary of Homeland's discretionary parole authority to increase and enhance entrepreneurship, innovation, and job creation in the United States. The use of parole would be on a case-by-case basis with respect to entrepreneurs of start-up entities whose entrance into the US would provide significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. It was announced that the potential would be indicated (amongst other things) by:

- the receipt of significant capital investment from US investors with established records of successful investments, or

- obtaining significant awards or grants from certain Federal, State or local government entities.  

Parole would be initially granted for a stay of 2 years and may be extended by up to 3 years. This would be to facilitate the applicant's ability to oversee and grow his or her start-up. To be granted parole again, it is announced that the entrepreneur would show his or her start-up continues to provide a significant public benefit as evidenced by:

- substantial increases in capital investment,

- revenue, or

- job creation. 

The drafted rule should be available in the Federal Register this week and will be open for comments for 45 days. 

Until new pathways for entrepreneurs are available, what are your options?  

For our entrepreneurial clients, we typically look at E-2 treaty investor visas, L-1 intracompany transfer visas, and EB-5 investor green cards. For more information on these, please email info@baimmigrationlaw.com or call +44 (0)1296 709 926 to speak with one of our qualified US Immigration Lawyers.