We've now had over 1,000 hits since Kennedy's Immigration Law Report launched in October of 2008! I know to some this is small potatoes, but I'm thrilled and really appreciate everyone who's stopped by to take a look. Thanks again for all your support and please keep checking in from time to time.
For those of you who have not yet submitted your diversity visa lottery application, time is quickly running out. This year's lottery (aka DV 2010) will close as of noon on December 1, 2008. Plus, during the lottery's last week the Department of State's DV website experiences extremely heavy traffic, which usually causes it to cough and sputter. So my best advice is to sit down this weekend and get that DV application submitted. Lottery results are scheduled to be posted in June 2009.
For more on the specific mechanics of the DV lottery, see my earlier post here.
Within the last hour or so word has leaked out that Gov. Janet Napolitano (D-AZ) may be President-Elect Barack Obama's pick to head the Department of Homeland Security (DHS). I don't think I can stress the degree to which Gov. Napolitano would be a phenomenal pick to head this agency.
DHS is the overarching administrative agency that controls and has jurisdiction over all matters of immigration policy in the United States. Both the United States Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) are sub-agencies under DHS. As a consequence, whomever Obama picks to head DHS is going to play an integral role in trying to foster a comprehensive immigration reform legislative package. And as I said earlier, I can hardly think of a better pick than Gov. Janet Napolitano.
First off, as Governor of the border-state Arizona, Napolitano has had a first-hand, acute experience with the immigration problems plaguing our country. She understands the realities of the challenges caused by thousands of people crossing over her border from Mexico into the United States. She knows the strains this places on infrastructure and, I think, she understands the great human toll border-crossing places upon the people who try to make the treacherous walk across into the U.S. She was the first governor to call for National Guard troops to secure the U.S. Mexico-border.
Back in June of 2007 Napolitano penned an Op-Ed piece in the New York Times that really gives insight into how she thinks about comprehensive immigration reform. In short, she gets it. While she strongly supports border security, she also believes that a functional guest worker program needs to be implemented in advance of fences being built. She's against the unworkable "touch back" provisions. And while I know this may sound pie-in-the-sky, my sincere hope is that she'll be able to marshal the resources necessary to make USCIS an efficient and functioning governmental agency. Gov. Napolitano, hire the people necessary to bring those priority dates current!
All in all, if this appointment comes through, it signals that the Obama administration is very serious about addressing the sticky thicket that is immigration in the United States. It's extremely encouraging.
I'm extremely pleased to pass along the news that the Immigration Policy Center has launched a new and impressive blog called ImmigrationImpact. The blog can be found here.
As we make the push during this new administration for rationale comprehensive immigration reform legislation, it's extremely important to have blogs like ImmigrationImpact serving as a counterweight to some of the more nativist voices out there, and to ensure that interested parties are able to locate factual, empirically-sound pro-immigration information to be deployed in the greater immigration debate. This new voice is a great resource and I encourage everyone to take a look.
Links to the Immigration Policy Center's main website and its new blog can also be found to the right.
The E-1 and E-2 classifications present great opportunities for certain people to come to the United States under fairly flexible and rewarding circumstances. What makes the E category so great? Well, in some limited ways the E classification confers benefits similar to legal permanent residency. For example, one huge plus of the classification is, at least in theory, E non-immigrants can remain in the U.S. in E status forever. It doesn’t always play out that way in practice, and there are plenty of contingencies involved, but knowing that the possibility of an indefinite stay exists points to this classification’s considerable upside. Maybe most impressively, a limited form of dual intent is recognized for those in E status. This basically means that under the right circumstances, an E nonimmigrant may be the beneficiary of a labor certification, immigrant petition, or have an adjustment of status application and still remain eligible for E status. One final, enormous perk offered by this classification is that a qualified applicant can initiate an E petition on their own behalf. Most of the other employment-related classifications require that a prospective employer be first willing to offer employment to the prospective employee and submit a petition on the prospective employee’s behalf. In comparison, the E classification is a self-starter.
So, who qualifies?
#1) Show me the treaty
The E classification consists of two subcategories, the E-1 category for treaty traders and E-2 classification for treaty investors. The basis of the E classification as a whole lies in treaties that were intended to enhance and facilitate economic and commercial interaction between the U.S. and the treaty country. So, the first criteria to examine in assessing whether someone qualifies for E status is whether a treaty of Freedom, Commerce and Navigation exists between the U.S. and the country of the applicant’s nationality. A list of the qualifying treaties and the corresponding countries can be found here.
#2) Does the applicant have the right nationality?
As the second basic criteria, the applicant for E status must possess the nationality of the treaty country. In most cases nationality is fairly easy to determine as a matter of birth. If you weren’t born in a country that’s party to a FCN treaty and you still want to make a run at an E visa, call your local immigration attorney.
E-1 Treaty Traders:
After working through the preliminary questions of whether an appropriate treaty exists and whether the applicant has the requisite nationality, the focus shifts to the specific requirements germane to the individual E visa categories (ie., E-1 or E-2). First we’ll focus on the E-1 subcategory, which requires that the applicant be facilitating “trade” between the United States and the treaty country. “Trade” means the existing international exchange of items of trade for consideration between the U.S. and the treaty country. The governing regulations require that the exchange of items be traceable and identifiable. Furthermore, title to the trade item must pass from one treaty party to the other.
A non-exhaustive list of items that qualify for trade include: goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, some news gathering activities, data processing, advertising, accounting, engineering and management consulting.
Finally, the trade must be substantial. The term “substantial trade” means an amount of trade sufficient to ensure a continuous flow of trade items between the U.S. and the treaty country. The emphasis is on numerous exchanges over time rather than a single transaction, regardless of the monetary value. In general, the trade will generally be considered substantial if it generates enough income to support the treaty trader and his or her family.
E-2 Treaty Investors:
Alright, let's now move our focus to a discussion of the E-2 treaty investor subcategory. In general I'd say that the E-2 is probably the most flexible E visa because you're not dealing with the specific mechanics of international trade. Once the treaty and nationality bridges have been crossed, the E-2 treaty investor must be in possession of and have control over the capital invested or being invested. The investment will be considered a proper investment if the investor received the funds in the first place by legitimate means—and this can be any source from earnings, savings, inheritance or even gift. Secondly, the investment capital must be subject to partial or total loss if the investment doesn’t work out. ie., Capital must be irrevocably committed to the enterprise. A mere intent to invest or possession of uncommitted funds in a bank account will not suffice.
Furthermore, the enterprise must be real and active commercial or entrepreneurial undertaking, it cannot be a paper organization or a speculative investment held for potential appreciation in value. Finally, the investment must be “substantial” in order to qualify the applicant for an E-2 visa. The relevant authorities haven’t drawn a line in the sand to identify the amount that constitutes a “substantial investment”, but suffice it to say that the amount depends on the investment opportunity at hand. If an applicant plans to use her E-2 visa to start a state-of-the-art microchip processing factory in Simi Valley, CA, an investment of $50,000.00 probably isn’t going to pass scrutiny. If, on the other hand, the applicant is going to invest $50,000.00 to open a falafel stand, and the applicant’s business plan projects a realistic chance for financial and employment-related growth, the chances are greater that the adjudicator at the Department of State will look favorably upon the application.
Options for people to immigrate to the U.S. so often depend on whether the alien has the right job offer, the right educational background, or the necessary family relationship. With the E-1 or E-2 investor visa classification, the normal rules don’t apply. If a person is a national from the correct country, has a decent bit of investment capital and some basic business acumen, the E-1/E-2 classification is an excellent, exciting immigration option. Oh, and finally, please remember that the E-1 and E-2 non-immigrant visas need to be distinguished from the EB-5 permanent residency investor status. Check back with us in the near future for an overview of the EB-5 program.
First off, let me apologize for letting ye old blog lapse into such a neglected state. Stasis is the cardinal sin of blogging and I pledge to avoid it in the future as much as possible. Having said that, my time away was well spent. In addition to keeping up with my day-to-day work here at Brick Gentry, I was spending nights and weekends doing what I could to make sure we brought a measure of change to our country. And, well, Yes. We. Did. An earnest and heartfelt thanks to everyone out there who chipped in, whether it was with cash, canvassing, office space, call time, votive candles or with the pencil in the ballot box.
Obviously President-Elect Obama comes into power facing significant challenges. My most sincere hope is that the flip-side to his challenge is opportunity. For the sake of immigration reform and virtually every other important issue facing our country, my hope is that we are able to set aside our differences and work toward a common purpose.
It doesn’t mater what political party you belong to, the creed you espouse, or the church you attend, if we respect each other’s opinions and assume the best rather than the worst about those from whom we differ, we’ll take a large step toward finding our common denominator and building a consensus that allows us to address the parasitic problems eating away at our country. Comprehensive immigration reform isn’t going to land in our stockings. It’s going to take each and everyone one of us identifying our collective interests, calling our legislators, and talking reasonably, informedly and persuasively with our friends and family. If we do I’m fairly confident our pragmatic instincts will prevail. Having said that, with the economy in it’s current condition, this might not happen in the first two years or even in the first four years, but I’m confident we can eventually get it done. But the work just started, and we need your time and efforts now more than ever. If you’re wondering about where you can find quality information and how you can get involved, I suggest starting with the Iowa Immigration Education Coalition. It’s a great group filled with wonderful people. Let’s get busy.
Enter keywords:
