Visa Waiver or B2 Visa? When looking to Invest in an E2 Visa Qualifying Business
Deciding on whether to enter the US under the Visa Waiver Program or under a B1/B2 Visitors visa is quite an important decision. Before making any kind of immigration decision please make sure you discuss your options with us – 310 496 4292
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When it comes to the E2 Visa there is a discussion to be had in deciding whether to enter the US under the Visa Waiver Program (VWP) or under the B1/B2 Tourist Visa. Even if you are not from a VWP country this article is still definitely an important read. Here is an outline of the key E2 visa considerations for buying a business in terms of deciding which option is better. Visa Waiver or B2 visa...
Entering the US to Buy a Business:
When ever an alien comes to the US to buy a business they can enter in one of two situations
1. As a visitor under the Visa Waiver Program
2. As the holder of an actual visa, typically a B1/B2 visa
The visa waiver allows Brits (and those from other VWP Countries) to enter the US without first having to go the Embassy to formally apply for a visa and instead allows the alien to visit the US for up to 90-days. The visa waiver holder can look at businesses for sale, negotiate contracts and make an offer, but when all of the negotiations are done the actual E2 visa application must be made through the London Embassy, for Brits or the alien’s home Country. The processing time in London can take 90-120 days (this will vary in other countries) and the alien will have to travel back to their home country for an Embassy interview. If the application is successful, the alien will be required to hand over their passport to be stamped. When the Embassy stamps the E2 Visa into the alien’s passport it will typically be for three years. The passport(s) is mailed back to the alien within about 5 business days.
Embassy Stamped E2 Visa: The main advantage of having the Embassy process the E2 visa and stamp it is that once officially stamped into the alien’s passport, the alien can enter the US in E2 visa status and thereafter can come and go as they please without any further immigration worries or Embassy visits for the three year period.
The disadvantage is that many business Sellers cannot wait 90-120 days for their sale to go through. In some cases the Seller will simply not accept any offer on those terms, insist on an increase to the purchase price or require that some of the purchase deposit become non-refundable in the event that having waited 90-120 days to complete visa, the sale for some reason does not go through e.g., if the visa is denied or the alien has a change of heart. Therefore, when ever an alien is entering under the visa waiver program to buy a business there are pros and cons to be consider here.
Entering the US with a B2 Visa to Buy a Business:
In order to obtain a B1/B2 visa the alien is required to make an application through an Embassy, the Embassy of choice for Brits is not the London Embassy, but Belfast. The American Embassy in London is the busiest Embassy in the world they have adopted a protocol whereby they will very rarely if ever issue B2 visa to assist aliens buying a business in the US. Technically, the B2 visa is not really to be used as a ‘stepping stone’ to another visa, therefore the US Embassy in London tend to hold to this line, even though aliens are looking to invest in the US and that the business they have under consideration will not wait the 90-120 days for the Embassy in London to process the case.
In contrast, the American Embassy in Belfast is far more sympathetic to this situation and is more willing to issue B2 visa to aliens having the intent to buy a business in the US.
Thus, as mentioned above, the main advantage of entering the US under the B visa is that when an alien has a Embassy issued visa (B1/B2), they can switch to any other visa they can qualify for (E2 Visa) without having to go back to their home country immediately. When their new visa application is approved in the US, as opposed to having had the E2 approved through an Embassy, (E2 Visa), the alien is issued with an ‘Approval Notice’ which they can use for all commercial purposes including obtaining a driving license and a Social Security number. Also, when a B2 visa buyer negotiates the sale of a US business, they can file for their E2 visa in the US under a special expedited service called Premium Processing.
.Premium Processing (PP):
PP enables the alien to have their visa application reviewed in a guaranteed time of under 15 calendar days. The answer will be Yes or “maybe”, the “maybe” really amounts to a Request for Further Evidence (RFE) where US Immigration (USCIS) have reviewed the case and have decided that they need some additional documentation in order to make a decision. the RFE could consist of almost anything, more recent financials, a better business plan, clarity on the alien’s current immigration status, funding etc. It’s not possible to eliminate the risk of an RFE since such requests are completely at the discretion of the USCIS officer reviewing the case.
Once the additional information is submitted USCIS have another 15 days or less to render their final decision. it will be Yes or no. if it’s a no, they will provide specific details on precisely what aspect of the case they were still not quite happy about.
The advantage of using PP is that it enables the buyer to complete the purchase of any business in record time. Typically, 45 days or less, even when allowing for a potential RFE.
The disadvantage is that when an alien enters the US on a B2 visa and then uses PP to expedite the processing of the E2 visa application, even though they get an Approval Notice allowing them to stay in the US for up to two years (not three years), they will still at some point have to go back to the Embassy in their own country to get that Approval Notice stamped into their passports so they can travel outside the US and re-enter at any time. In order to get the Approval notice Stamped into their passport their case will have to be repackaged Embassy review. In terms of additional attorney fees this can cost anywhere from 10% – 25% of the original E2 attorney fees paid, not to mention any attorney fees paid in getting the B2 visa in the first place. By the way, the above mentioned percentage goes up the longer the alien waits to make the Embassy application because as each month that passes the original information submitted when the case was filed becomes increasingly out of date.
Conclusion:
It is a very fine balancing act to decide whether to come to the US on a B1/B2 visa or under the visa waiver program to buy an E2 qualifying business. Some aliens from non-visa waiver countries have to apply for a B1/B2 visa just to visit the US, and in many cases these aliens are not looking to return to their home country any time soon, however, once their E2 is approved, there is that requirement to go back to their Embassy at some point to have it stamped into their passports so they can thereafter travel in and out of the US at will.
I hope this outline helps explains the key issues here. If you have any further questions please do not hesitate to contact me directly to discuss.
– E2 Visa Home Page Video Series
– E2 Visa Video – Andy and Helen – NuYo
– E2 Visa Video – Peter and Sue – Day Care
– E2 Visa Video – Raj and Mina – Food Store
– E2 Visa Video – John and Shona – Insurance
– E2 Visa Video – Stephen and Jane – Dogs
– E2 Visa Video – Rob and Jilly – Pictures
– E2 Visa Video – Timon and Sharon – Web Design
– E2 Visa Video – Joe’s Camera Store Yr 4
– E2 Visa Video – Joe’s Camera Store Yr 1
– E2 Visa Video – Chuck and Dorka – Education
– E2 Visa Video – Rebekah – LA Celebrity Stylist
– E2 Visa Video – Carla – UPS Store
– E2 Visa Video – Shegar and Kanjena – FedEx
– E2 Visa Video – Paul – Corporate Trainer
– E2 Visa Testimonial – Lynda – Diner
– E2 Visa Testimonial – Kathryn – Body Therapist
– E2 Visa Testimonial – Mary – Recruitment
– E2 Visa Testimonial – Joe – LA Film Maker
– E2 Visa Testimonial – Raj – Shopkeeper
– E2 Visa: List of Qualifying Countries
– Entering US: Visa Waiver or B2 Visa
– EB5 – Direct to Green Card $500K Investment
US Immigration Law Offices of Chris M. Ingram
US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
520 Broadway, Suite 350,
Santa Monica,
California 90401
Tel: 310 496 4292
Everyday the Law Offices of Chris M. Ingram provides a comprehensive range of US Immigration expertise. We also provide a free consultation for our prospective clients.
Specializing in the E2 Visa, EB1 Green Card, L-1A Visa and O1 Visa and K1 Visa Marriage-Based Immigration. Attorney Chris M. Ingram is dedicated to providing the very best in US Immigration legal representation. Enjoy our website.
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