Geygan & Geygan, Ltd.

A Cincinnati Immigration Law Firm

  • Home
  • About Us
    • Directions
      • Geygan & Geygan, Ltd.
      • Cleveland Immigration Court
      • USCIS Cincinnati Field Office
    • Why I do what I do
  • Immigration
    • Family Immigration Home
      • K-1 Petition for Alien Fiancé(e)
      • Marriage Green Card
      • Removal of Conditions on Status (I-751)
    • Investment Immigration
      • E-2 Treaty Investor Visa
      • EB-5 Visas
    • Employment Immigration
      • Employment-Based Immigration: First Preference EB-1
      • Employment-Based Immigration: Second Preference EB-2
      • Employment Immigration H-1B
    • Naturalization 2021
    • Preventing Deportation
      • Immigration Court Video
      • Immigration Law Violations
      • Cancellation of Removal
      • I-212 Waivers
      • I-601 Waiver of Inadmissibility
    • Work Card or Employment Authorization Document
    • Nonimmigrant Options
      • H-1B Visas For Specialty Occupations, Like Yours
      • The B Visas: Business or Pleasure?
      • Types of Visas for Temporary Visitors
      • E-1/E-2 Eligibility Requirements
        • The E-1 Treaty Trader Visa
          • E-1 Treaty Traders Details
        • E-2 Treaty Investor Visa
    • I-601A Provisional Unlawful Presence Waiver
    • I-601 Waiver of Inadmissibility
    • Criminal Law and Immigration
    • Temporary Protected Status
    • USCIS Processing Times Calculator 2021
  • Legal Information
  • Archive & Site Map
  • Log In / Out

Parole for Start-Up Entrepreneurs will be available July

January 18, 2017 by Thomas Geygan

USCIS final rule which adds new regulatory provisions guiding the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities who can demonstrate that they would provide a significant public benefit to the United States. The rule introduces Form I-941, Application for Entrepreneur Parole. It also makes revisions to Form I-9, Employment Eligibility Verification; Form I-765, Application for Employment Authorization; and Form I-131, Application for Travel Document. The rule is effective 7/17/17. (82 FR 5238, 1/17/17)

Filed Under: Green Card, Investor Visas, Treaty Investors

A Quote from USCIS Field Manual on E-2 Visa

October 6, 2016 by Thomas Geygan

It is often a very good idea to understand how the other side views a case.  In E-2 visa applications it is critical.  Below is an excerpt of USCIS’s Adjudicators Field Manual as it relates to E-2 Treaty Investor Visa.  This section is all there is from the field manual, but not all there is to the tools and policies available to the adjudicator.  This is a good starting point in the evaluation, prior to filing if an E-2 visa application will be successful or not.  If you would like some more detailed information please click here and I will give you our E-2 Treaty Trader Overview as well as some additional tools to help you apply for the E-2 visa.

34.3    Treaty Investors.

(a) Eligibility Requirements.

(1) The Business. The E-2 enterprise (company, corporation, etc.) must involve the investment of a substantial amount of capital, rather than a marginal investment solely for the purpose of earning a living for the investor.

(2) The Alien. An E-2 alien may be the actual owner of a qualifying enterprise or an employee of such enterprise working in an executive or supervisory capacity or in a capacity which requires special qualifications essential to the operation of the enterprise. Such employees must have the same nationality as the principal employer. An E-2 alien may perform services for the parent treaty organization or any of its subsidiaries

(3) Nationality. The E-2 principal must be either a person in the U.S. having the nationality of the treaty country (or, if not in the U.S., otherwise entitled to treaty investor status), or be a qualifying employee of an enterprise at least 50% owned by persons of such nationality. The list of treaty countries is contained in the Department of State’s Foreign Affairs Manual, chapter 41.51, Exhibit 1. Note that the list for treaty investors is different than the list for treaty traders.

Note 1: The nationality of dependents is irrelevant to their classification.

Note 2: The spouse of an E nonimmigrant is may apply for work authorization.

(b) Application Process.

Because a treaty investor does not require a separate petition, E-2 status may be obtained either directly through the Department of State (by applying for an E-2 visa), or in the case of an alien already in the U.S., by applying to the appropriate service center for a change of status on Form I‑129, including the E supplement. Supporting documents to be submitted with an E-2 application include documents to establish the nature of the employment and the ownership of the enterprise, as described in paragraph (a), above.

(c) Approval.

If, from the evidence submitted, the application appears approvable endorse the approval block and issue Form I‑797 (through CLAIMS) showing the period of validity and the alien beneficiary’s name and classification.

(d) Denial.

If the evidence does not clearly establish the beneficiary’s eligibility for E-2 status and a request for additional evidence does not appear warranted, prepare a denial notice setting forth the specific reasons why the application cannot be approved. There is no appeal from a denial of E-2 classification. However, if the facts of the case are novel, complex or potentially of value as a precedent, the decision of the director may be certified to the Administrative Appeals Office pursuant to 8 CFR 103.4.

(e) Advisory Letters.

An E-2 may seek advice from USCIS concerning any change in employment (e.g., capacity of employment, company restructuring, etc.) which might affect his or her status. The adjudicator reviewing the advisory request must either recommend the filing of another application, or prepare a new I‑797 reflecting the non-substantive changes.

(f) Technical Issues.

(1) Ownership of an E-2 Company. An alien employed by a foreign person may not be classified as an E-2 nonimmigrant unless the foreign employer is also classified as an E-2 nonimmigrant, or if abroad, the employer must be eligible for admission to the U.S. as an E-2 nonimmigrant. If the employer is a corporation or other business organization, the majority ownership (at least 50 percent) of the business must be by aliens who are of the same nationality as the employee and who, if not residing abroad, are maintaining status under section 101(a)(15)(E) of the Act. An alien who is a lawful permanent resident of the U.S. does not qualify to bring employees into the U.S. under section 101(a)(15)(E). Shares of a business owned by lawful permanent resident aliens cannot be considered in making determinations of majority ownership by nationals of the treaty country.

(g) Precedent Decisions Involving Treaty Investors.

•          Matter of Kobayashi and Doi, 10 I&N Dec. 425 (District Director 1963; Regional Commissioner 1963; Deputy Associate Commissioner 1963). Managerial employees charged with the training or instruction and supervision of entertainers and waiters in a theater restaurant are not employed in the “responsible capacity” as required by 22 CFR 41. They are not properly classifiable as nonimmigrant employees of a treaty investor.

•          Matter of Udagawa, 14 I&N Dec. 578 (BIA 1974). Applicant for admission who will supervise and train American workers as tempura cooks at a Japanese restaurant and assist in the preparation of meals during the training period is inadmissible as an employee of a treaty investor because he will not be employed in a “responsible capacity” with the meaning of 22 CFR 41.51.

•          Matter of Laigo, 15 I&N Dec. 65 (BIA 1974). A treaty investor is precluded from engaging in unauthorized employment by the provisions of both 8 CFR 214.1(e) and 8 CFR 214.2(e). Unauthorized employment constitutes a failure to maintain status.

•          Matter of Lee, 15 I&N Dec. 187 (Regional Commissioner 1975). E-2 status denied where the total value of the enterprise was $64,000 and the applicant has invested only $10,000, but alleges that at some unspecified future time he will increase his investment to more than 51% of the enterprise. The applicant has failed to establish that his investment does not represent a “small amount of capital in a marginal enterprise solely for the purpose of earning a living” contrary to the provisions of 22 CFR 41.51.

•          Matter of Chung, 15 I&N Dec. 681 (Regional Commissioner 1976). An application filed under section 248 of the Act for change of nonimmigrant classification from visitor to treaty investor is denied where the applicant’s only showing was that he intended to invest $10,400 on deposit in a savings account in a shoe manufacturing business. The mere intent to invest does not meet the requirements of the Act.

•          Matter of Nago, 16 I&N Dec. 446 (BIA 1978). Where the applicant for admission is a highly trained chef who is engaged in a specialized form of Japanese cooking (Nabemono) and has been brought to the U.S. to impart his knowledge, the BIA concluded that the applicant is employed by a treaty investor in a responsible capacity and therefore qualifies as an E-2 nonimmigrant.

•          Matter of Khan, 16 I&N Dec. 138 (BIA 1977). The respondent had at best a subjective intention to invest in the future. Although he may have invested funds in the past, that does not establish that he will invest funds in the future. More is required for such a showing.

•          Matter of Csonka, 17 I&N Dec. 254 (Regional Commissioner 1978). The alien who had not invested his own funds did not qualify as a treaty investor. He had acquired loans which had been guaranteed by another party.

[contentblock id=4 img=html.png]

Filed Under: E-2, Investor Visas, Treaty Investors

Accounting Statements for Investor Based Immigration

October 4, 2016 by Thomas Geygan

Introduction

U.S. Citizenship and Immigration Services (USCIS) regulations concerning investor based immigration petitions require a review of financial information from sources that may include income tax returns, audited financial statements, and other financial data evidencing the investor-petitioner’s initial and ongoing capital investment. The accurate presentation of financial documentation concerning the valuation of assets contributed to a business, and the financial status of a business, is critical to eligibility. At the end of the two-year conditional permanent residence period in EB-5 cases and ongoing reporting for renewals of E-2 cases, the investor must demonstrate that the investment and the enterprise have been sustained. An understanding of financial documentation, therefore, is essential to preparing petitions that will qualify the investor for immigration benefits.
It is important that your immigration lawyer be familiar with the details of accounting systems, financial and tax reporting. It is critical to understand there are many legitimate combinations of systems and methods of accounting used in business. This knowledge alone can be very valuable in identifying potential ways to helping you the client address the evidentiary requirements of immigration petitions. This article will discuss the three financial statements.

Different Financial Statements

Financial statements are an important tool for the investor to manage and control the investment. All investors no matter how small should have financial statements for both their use and as evidence for their future petitions. If the financial statements have been compiled, reviewed, or audited by a CPA, the financial statements should be accompanied by an accountant’s report that describes the CPA’s level of service and indicates whether the financial statements contain departures from GAAP. There are three general types of engagements.

Compiled Statements

Compilation engagements are engagements in which a CPA receives information supplied by the client and arranges it into proper financial statement form under GAAP, without attempting to express any assurance on those statements. The CPA is concerned that the assembly of information is arithmetically correct; however, the CPA does not verify the accuracy or completeness of the information provided. In a compilation engagement, the CPA does not have to make inquiries of management or perform other procedures to verify, corroborate, or review information supplied by the client. Compiled financial statements are common for most small companies or companies that do not have reporting requirements to a bank or other creditors.

Reviewed Statements

In a review engagement, the CPA goes beyond putting client information together. The CPA also makes certain inquiries of management and performs analytical procedures. However, in a review, the CPA does not have to understand the company’s internal control, test the accounting records, observe inventory, confirm receivables, or obtain other corroborating evidence, as required in an audit. Review engagements differ from audits because the scope of review is less than that of an audit and, therefore, the level of assurance provided is lower. A review consists primarily of enquiry, analytical procedures, and discussion related to information supplied to the public accountant by the enterprise with the limited objective of assessing whether information being reported on is plausible within the framework of criteria.

Audited Statements

In an audit engagement, the CPA goes beyond a review, and on a test basis, examines evidence supporting the amounts and disclosures in a company’s financial statements. The objective of an independent, external audit under accepted auditing standards (GAAS) is to express an opinion on whether an entity’s financial statements present fairly, materially, its financial position, results of operations, and cash flows in conformity with GAAP. This is the highest form of assurance. The auditor performs the audit with an attitude of professional skepticism and seeks reasonable assurance whether the financial statements are free of material misstatement. Materiality and audit risk affect the application of GAAS, especially the fieldwork and reporting standards, and are reflected in the auditor’s standard report. The auditor must make judgments about materiality and audit risk in determining the nature, timing, and extent of procedures to apply, and in evaluating the results.

The subsequent petitions for the immigrant investor require accurate and informative financial reports. These reports with other documentary evidence must be submitted to USCIS to meet the high evidentiary standards.

[contentblock id=4 img=html.png]

Filed Under: E-2, Investor Visas, Treaty Investors

LAWFUL SOURCE OF FUNDS

September 30, 2016 by Thomas Geygan

The immigration regulations require the E-2 treaty investor to prove that the invested capital was “obtained through lawful means.”. USCIS often insist upon substantial documentation to prove lawful source of funds. Although the regulatory list of documents is in the disjunctive, in practice USCIS requests all of the listed categories of documents and, usually significant additional documentation. This is one area of the law where simply following the regulations will not be sufficient. The regulatory requirements should be viewed as a starting point. Sometimes tax returns will show a sufficient enough income to preclude the necessity of any further documentation.

Documenting lawful source of funds requires extreme attention to detail and knowledge of business documentation and sometimes of finance and accounting. Many financial transactions require a multitude of documents to evidence, and USCIS will insist on all of the detailed documentary evidence. It is only necessary to prove where and how the investor obtained the required invested funds. It is unnecessary to prove where the investor obtained every dollar he or she now has or ever had. The difficulty of documenting the lawful source of funds often varies greatly by country. It can be especially difficult in countries where no tax returns must be filed or where full disclosure of revenues and profits on tax returns is the exception rather than the rule. Where tax returns do not have to be filed, this should be documented. Where tax returns must be filed but the individual’s tax returns show little income, the documentation of the source of funds should provide overwhelming evidence to counter the negative implication that comes from a review of the tax returns.

Documenting lawful source of funds is a different requirement than the requirement to trace the funds from the individual investor to the investment enterprise. This also needs to be done in great detail. For countries with restrictions on the outflow of currency, this can be especially difficult, since the investor may engage in several layers of transactions between the money leaving the investor’s account overseas and arriving in the US enterprise.

In documenting lawful source of funds, the ultimate focus is on the person who originally obtained the funds. If the investor obtained all funds on her own, this is not an issue. If the funds resulted from a gift, the lawful source of the giftor’s funds must be documented. If the source of funds was a loan, the lawful source of the lender’s funds must be documented, and the lawful source of any collateral put up by the investor for the loan. If the source of funds is an inheritance, the decedent’s source of funds may be the issue.

Often in documenting lawful source of funds, the attorney or client must make a judgment regarding how far back to go with the documentation. If the source of funds is a real estate transaction that resulted in substantial proceeds from the sale of real estate, the documentation of the real estate sale is required. If the real estate was purchased within the last several years, it is highly recommended to document how the investor obtained the money to purchase the real estate now sold. If the real estate was purchased 30 years ago, it may be impossible to provide such documentation. There is no clear line regarding how far back one must go to obtain documentation, with “reasonableness” being the rule of thumb. The same concepts apply to securities transactions. For inherited money, if the decedent earned his or her money 50 years ago, USCIS may agree it is not possible to document the earning of those funds.

Although primary documents should be obtained wherever possible, written statements, affidavits and resumes can help fill some holes in the primary documentation and can help to paint a picture that satisfies the USCIS examiner that the invested capital had a lawful source. It is always a good idea to provide a narrative description of the investor and the invested funds, with citations to the documentary exhibits, rather than relying on the USCIS examiner to understand all of the documentation and to conclude that the investor wants drawn from the documentation.
In many investment cases, documenting the lawful source of funds can be the most arduous and time consuming part of the process. The investor should be forewarned of the need for substantial documentation. Sometimes, the investor may have gone to great lengths to avoid having documentation of the very transactions that now must be proved for the immigration petition. If transactions can be diagramed and supporting evidence provided showing where the money came from, the chances of satisfying USCIS should be greatly enhanced.

[contentblock id=4 img=html.png]

Filed Under: E-2, Investor Visas, Treaty Investors

Some E-2 Treaty Investor Requirements

September 28, 2016 by Thomas Geygan

Requirement 1 – As a treaty investor, you must come to the United States to invest in a new or existing enterprise.

USCIS defines an E-2 investment as the investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. Your investment may be to establish a new business venture, or purchasing a pre-existing business. In either scenario, demonstrate that the capital you are investing is substantial.

Requirement 2 – Your investment must be in a bona fide enterprise and may not be marginal.

A bona fide enterprise is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit.  The enterprise cannot be an idle investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise.
A marginal enterprise is one that will not generate more than enough income to provide a minimal living for you and your family or to contribute.

+ How do I demonstrate that my business is bona fide?

Some of the evidence you may submit to demonstrate that your business is bona fide includes:

•    Notice of assignment of an Employer Identification Number from the Internal Revenue Service (IRS)
•    Tax returns
•    Financial statements
•    Quarterly wage reports or payroll summaries (i.e., W-2s and W-3)
•    Business organizational chart
•    Business licenses
•    Bank statements, utility bills, and advertisements/telephone directory listings
•    Contracts or customer/vendor agreements
•    Escrow documents
•    Lease agreement

+ How do I demonstrate that my business is not marginal?

Some of the evidence you may submit to demonstrate that your business is not marginal includes:

•    Detailed business plan or executive summary showing that your business will produce more than a minimal living for you and your family or will create a significant economic contribution, with any evidence that you believe will support the statements in your business plan.
•    U.S. or foreign individual tax returns
•    Financial statements
•    Payroll summaries (i.e., W-2s and W-3)

Requirement 3 – You must have the funds you will invest and the funds must be committed to your business.

Demonstrate that the capital you invest is irrevocably committed to the enterprise and subject to partial or total loss if the entity fails. The funds you invest must also be your own. The invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the enterprise you are considering.

Some of the evidence you may submit to demonstrate that your investment is substantial and irrevocably committed to the enterprise includes:

•    Canceled money orders and/or checks
•    Corresponding personal and/or business bank statements
•    Itemized list of goods and materials purchased for the start-up
•    Corresponding financial accounting documentation
•    Lease agreement
•    Term Sheet, Letter of Intent, or Memorandum of Understanding
•    Bill of sale
•    Escrow documents
•    Loan and/or mortgage agreements
•    Capitalization table
•    Valuation analysis of business assets
•    Purchase agreement for business assets
•    Valuation analysis of stock
•    Stock purchase agreement, accompanied by:

o    Meeting minutes
o    Stock ledger
o    Stock certificate
o    Corresponding forms of payment for stock

Requirement 4 – You must be able to provide the source of your funding.

You must show a clear and legitimate path regarding the source of the capital you will invest. Also demonstrate that the funds you are investing have not been obtained through criminal means.

+ How do I demonstrate the source of my capital?
Some of the evidence you may submit to demonstrate the source of your capital includes:

•    Wire transfers, money orders, and/or canceled checks
•    Foreign and domestic bank statements
•    Foreign tax returns
•    Pay records
•    Property records
•    Loan and/or mortgage agreements

Requirement 5 – You must come to the United States to develop and direct the enterprise.

Show that you will develop and direct the investment enterprise by demonstrating ownership of at least 50 percent of the enterprise, or by possessing operational control through a managerial position or other corporate devices.

+ How do I demonstrate that I can develop and direct my business?
Some of the evidence you may submit to demonstrate your capacity to develop and direct your business venture includes:

•    A detailed list of all owners and their percentage of ownership. If you are one of two 50 percent owners, or own less than 50 percent of the enterprise, the documentation should be signed by all owners in order to evidence you possess a controlling interest
•    Capitalization table
•    Stock purchase agreement, term sheet, letter of intent, or memorandum of understanding
•    By-laws
•    Meeting minutes
•    Stock certificates or stock ledger
•    Articles of incorporation/organization
•    Annual report or U.S. Securities and Exchange Commission (SEC) Form 10-K
•    Partnership agreement
•    Franchise agreement

[contentblock id=4 img=html.png]

 

Filed Under: Investor Visas, Treaty Investors, Uncategorized

Next Page »

Client Resources

May 15, 2017

 

More Posts from this Category

Featured Posts

Biden administration considers migrant restrictions similar to Trump policies.

Asylum rates drop as immigration cases are fast-tracked.

Contact Us

Geygan & Geygan, Ltd.

8050 Hosbrook Road, Suite 107
Cincinnati, Ohio 45236
Tel 513-791-1673
Fax 513-791-1683
info@geygan.com

Disclaimer and Privacy Policy

Lawyer Thomas Geygan | Featured Attorney Immigration

Copyright © 2023 · Enterprise Pro Theme on Genesis Framework · WordPress · Log in