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Future US-China Investment Treaty may Create Jian Joe Zhou, Attorney at Law The United States and China agreed on Wednesday, June 18, 2008, at the conclusion of two days of high level, official economic discussion that they will begin negotiations on a bilateral investment treaty in hopes of expanding economic opportunities to citizens of both nations. While it may take a year or more to create and finalize an investment agreement, such an arrangement may increase the available visa options for Chinese businessmen and allow them to receive an E category visa and its associated benefits. The E category is a specifically designed for nationals of countries that have Treaties of “Friendship, Commerce, and Navigation” with the United States and is designed to aid and promote trade and investment between the treaty countries. Qualified nationals can obtain either a treaty trader (E-1) or treaty investor (E-2) visa to work in the US in order to conduct activities related to these two areas, depending on the treaty arrangement between the US and their country. They can also obtain visas for their dependent children or spouse under this category. In addition to work authorization, the E category has other important advantages over other visa categories. So long as they maintain a similar level of trade and investment during their stay, holders of an E status can remain in the United States for an indefinite period of time. The initial validity period is two years but it can be extended in two year increments for an unlimited number of times provided the E status holder declares that he or she will leave the US when the validity period is over. They are not required to keep a foreign residence and their derivative family members can apply for DHS work authorization. Because China does not currently have a treaty on trade or investment in force with the United States, Chinese nationals cannot receive E category visas and cannot receive any of the benefits E status provides. If the US and China were to enter into an investment treaty it is possible that qualified Chinese nationals will be eligible for E status. However since it is impossible to be certain about the details of any US-China agreements in this area, if the treaty is to include immigration benefits, it is likely that Chinese nationals will only be able to receive the E-2 type visa for treaty investors and their derivative family members. This has been the case with other nations who only have investment treaties and not trade treaties with the US. The E category is available to nationals, both individuals and corporations, from qualified treaty countries that have made a substantial investment in an operating business in the US or certain employees of the E status holder’s enterprise. There are several general requirements for E category visas. In addition to requiring a qualified treaty between the US and the foreign nation under which the visa is sought, this category requires that the majority ownership or control of the investing or trading company is held by nationals of the foreign country under whose treaty the E status is sought. In addition if the applying individuals are employees of the investing or trading enterprise, they must all hold citizenship from the foreign nation under whose treaty E status was initially sought. Employees who are applying for E category visas, they must hold executive or supervisory roles within the enterprise or hold a highly skilled position that a US resident worker could not fill. A significant legal advantage for the E-2 treaty investor category is that there is no specified monetary minimum requirement for an investment to be considered significant only that it should be sufficient enough to ensure successful business operations and also to have an economic impact in the United States. Because the E category visas are specific to nations with qualified treaties, they offer benefits that other options do not. Currently, investors and managers in non-treaties countries must apply for intracompany transferee (L-1) worker visas, H-1B worker visas or EB-5 investor immigrant visas. Each of these current options has limitations that the E category does not. The L visa is restricted to executive, managerial or specialized workers in a multinational corporation who have been employed continuously abroad for at least one year with the corporation or an affiliate. In addition the L category is not designed for self-employment and both the US and the foreign company must be active. H-1B is also an available option but has several key limitations including the H-1B quota and the requirement of a professional occupational offer, which does not allow the petitioning alien the opportunity the same as the E status. The EB-5 investor immigrant visa is similar to the E2 treaty investor category but it has a specific and much higher investment requirement of $1 million ($500,000 in certain cases) and the procedure may take years to complete. In addition, in the EB-5 investor immigrant visa application, the applicant must demonstrate the legitimacy of his source of the capital. So although it is still uncertain if China and the US will indeed enter in to a bilateral investment treaty that contains immigration benefits, the beginnings of negotiations are an important development for Chinese nationals wishing to come to the US to conduct business. The possible inclusion of China in the list of nations qualified for E category designation could create new options for employers and employees to come to the US and receive the related benefits. We will follow up on the development of the bilateral treaty negotiation and report any news as it becomes readily available. For more information on E visas, please follow the link to the E visa section of our website at www.hooyou.com. Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC, with more than 8 years of experience in employment and business immigration practice and international transaction practice. ------ (06/20/2008) For more immigration news, please click here |
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