Complicated business structures and the E2 visa
In the corporate world, complicated business structures are commonplace. This past week, I’ve met with several different business owners who have a less-than-straightforward business structure. In one case, a foreign business and an individual own the US business. Another business is owned by two individuals, but the business is working for another business and owns yet another business.
So, what types of things do you need to know if your business structure is not for the faint of heart?
The main thing to show is nationality. In cases of single owners, this is easy. Are you a national of a treaty country? If the answer is yes, we include a copy of the passport and move forward. However, if you have a structure of businesses owned by other businesses and multiple owners from multiple companies, things aren’t always so clear. According to FAM, “nationals of the treaty country must own at least 50 percent of the business in question when the investor is an organization and the applicant is an employee. In corporate structures one looks to the nationality of the owners of the stock. If a business in turn owns another business, then nationality of ownership must be traced to the point of reaching the 50 percent rule with respect to the parent organization.”
So, tracing is crucial. Your attorney needs to be able to simply and easily show the structure and prove the 50% ownership. This can be done through graphs, charts, etc. Of course, we will need some sort of documentation to back that up, including corporate documents, etc. It’s always our policy to present the needed evidence in a very simple and clear. Don’t let the officer guess what is going on or wade through tons of paper and get lost.
Another thing to consider when dealing with these structures is control of the company. Again, FAM gives us the guidance we need in these cases. “…if the applicant is the investor who is coming solely to develop and direct the enterprise, then the applicant must show that he or she controls or will control the enterprise. Normally such control is shown through at least 50 percent ownership by the applicant, but it can also be shown by possession of operational control (through a managerial position or other corporate device) or by other means.”
In this case, we need to show that you have control over operations. Note that FAM specifically states that a job title alone won’t do the trick. The investor will need to show actual control. This can be done through a variety of ways: through ownership of at least 50%, generally provided for in corporate documents; through the job description which shows ability to hire and fire and other “controlling” actions within the business; financial control (signing ability); legal control (ability to enter into agreements, etc).
If you and your business or business partner are interested in pursuing an E2, contact us today. We can help show that you have the requisite nationality and control for this visa. And, as always, we’re happy to help!