U.S. Employers' Responsibilities: Hiring Foreign Workers. E-2 Investment Visas: How to Start a Business in the U.S.

1. Yuliya Pashkova, Esq*
(*Licensed in Illinois)
Embry Dana Sattro, LLP
8880 Rio San Diego Dr., Suite 260
San Diego CA 92108
619-440-5716
yuliya@edsfirm.com

2. U.S. EMPLOYERS’
RESPONSIBILITIES
Hiring foreign workers

3. FORM I-9
RULES FOR U.S. EMPLOYERS HIRING FOREIGN WORKERS: PROTECT
YOURSELF
 Must verify identity and employment authorization of each hire.
 Must have a completed Form I-9 on file for each person of the payroll.
 Section 1 of the Form must be completed on the day of the hire.
Section 2 must be completed within three day of the hire.
 Within three days of the hire, an employee must show you their
employment authorization.
 Independent contractors do not need to fill in Form I-9.

4. EXPIRED EMPLOYMENT AUTHORIZATION
 When an employee’s EAD (Employment Authorization Document)
expires, you must reverify their employment authorization no later
than the date of the expiration.
 You do not have to reverify U.S. permanent resident cards, even if
they expire.

5. E-VERIFY
 E-Verify is an Internet-based system that allows employer to verify
whether their employee is authorized to work in the United States.

6. E-2 Investment Visa
How to Start a Business in the United States

7. Introduction
 E-2 visa is a temporary visa which allows foreign entrepreneurs to
come to the United States to invest in a business which they will be
controlling.
 Initial period of stay is 2 years.
 Extensions of stay are granted for 2 year increments.
 No limit to extensions.

8. TREATY COUNTRY
 The investor must be a national of a country that
has a commerce treaty with the United States.

9. NATIONALITY OF INVESTOR
INDIVIDUAL
 Has to have a passport issued
by a treaty country.
 Dual citizenship allowed.
 Investor should own at least
50% of the business.
ORGANIZATION
 Nationals of the treaty country
must own at least 50 percent of
the business when the
applicant is an employee.
 The country of incorporation is
irrelevant.

10. INVESTMENT
APPLICANT HAS INVESTED OR IS ACTIVELY IN THE
PROCESS OF INVESTING
 Possession and control of invested funds.
 Inheritance of a business is not an investment.
 Invested funds must be at risk, i.e. subject to partial or total
loss.
 Non-profit organizations do not qualify.
 No loans, where the business is a collateral.
 Can use loans secured by personal assets or unsecured loans.
 Real and irrevocable commitment of funds.

11. REAL COMMERCIAL ENTERPRISE
 The enterprise must be a real and active commercial or
entrepreneurial undertaking, producing some service or
commodity.
 No passive investments.


12. SUBSTANTIAL INVESTMENT
THE INVESTMENT MUST BE SUBSTANTIAL
 No minimal investment.
 However, at least $100,000 investment is a typical
expected amount.
 Substantial in a proportional sense: i.e., substantial in
relationship to the total cost of either purchasing an
established business, or creating an enterprise of the
same type.

13. MARGINALITY REQUIREMENT
THE INVESTMENT MUST NOT BE MARGINAL
 Must generate more than enough income to provide for the investor
and his or her family.
 Comprehensive business plan showing future capacity for hiring
several employees within five years.
 Commitment to hiring at least one employee by the second year.

14. DEVELOP AND DIRECT
INVESTOR IS IN A POSITION TO DEVELOP AND DIRECT THE ENTERPRISE
 If there are two equal partners, both have a controlling interest, as long as
both have full management rights and responsibilities.
 More than two equal partners would not work, unless certain conditions are
met.

15. EMPLOYEE OF TREATY INVESTOR
To qualify for an E-2 visa an employee of the treaty investor has to:
 Be the same nationality as the treaty investor;
 Work in an executive or supervisory capacity, or if employed in a
lesser capacity, have special qualifications.
 If the employer is not an individual, it must be an enterprise or
organization at least 50% owned by persons in the United States who
have the nationality of the treaty country.
 The owners must maintain an E-2 status in the U.S.

16. QUALIFICATIONS OF AN EMPLOYEE
TWO TYPES OF EMPLOYEES
 Managerial position: ultimate control and responsibility for the
organization’s overall operation.
 Essential employee: must possess special skills that are essential to
the proper operation of the company.

17. SPOUSES AND CHILDREN OF E-2
INVESTOR
 Treaty investors may be accompanied by their spouses and children
under the age of 21.
 Spouses of E-2 investors may apply for work authorization.
 Children can attend school.

18. GREEN CARD
 E-2 visa does not lead directly to a green card.
 But you can still apply for a green card if you qualify under some
other category.