On May 1, 2019, the E-2 Treaty Investor Visa may be available to Israeli citizens wishing to make a substantial investment in or set up a business in the United States. After several rounds of negotiations between the two countries and U.S. citizens already able to obtain a B-5 Israeli Investor visa, the United States is expected to approve the proposed May 1 launch date in early April.

The E-2 Visa grants qualified treaty investors and employees, as well as their dependent family members, a maximum initial stay of two years. Extensions may be granted in increments of up to two years, with no maximum limit so long as the E-2 nonimmigrant maintains an intention to depart the United States when their status expires or is terminated.

To qualify, the United States Citizenship and Immigration Services (USCIS) indicates a treaty investor must show at least 50 percent ownership of the enterprise or possession of operational control through a managerial position or other corporate device. The enterprise must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. In addition, the treaty investor must risk a substantial amount of capital with the objective of generating a profit.

Given the flexibility of the E-2 Visa and Israel’s prominent position in the hi-tech sector, this new development has great potential to advance Israeli business interests and streamline entrepreneurial ventures.

For more on E-2 visas, click here.

As an update to an earlier post, on Aug. 1, the president signed the Knowledgeable Innovators and Worthy Investors Act (KIWI Act) granting E-1 and E-2 status to certain New Zealand nationals under mutual considerations. This will permit citizens of New Zealand to apply for U.S. visas to carry on significant trade with the United States (E-1) or after making a substantial investment in the United States (E-2). The KIWI Act is now designated as Public Law 115-226 (132 STAT. 1625).

For more information on E-Visas, click here.

This post provides the latest update with respect to consular section operations in Israel. After closures caused by the Oct. 7, 2023, attacks on Israel and subsequent security concerns, the U.S. consular posts in Israel have resumed essential U.S. citizen services and limited nonimmigrant visa services. 

The U.S. Citizen Services Unit has established daily walk-in times for U.S. citizens with immediate travel plans to obtain emergency passports. This includes emergency U.S. passport applications for first-time applicants. Furthermore, appointments can be made for all other purposes, including non-emergency travel. Appointments for renewal of lost or expired passports, Consular Reports of Birth Abroad, and notarial services are made available for the following week every Wednesday at 3 p.m. local time. Additionally, the U.S. Embassy in Jerusalem has warned that escalated levels of violence and danger in the West Bank may make it difficult for U.S. citizens to access the U.S. Embassy in Jerusalem and Consular Branch in Tel Aviv, so U.S. Services will be providing regular outreach to the West Bank for affected individuals.

Additionally, limited visa services have resumed and visa appointments can be scheduled for nonimmigrant work visas such as E-1, E-2, L-1, and H-1B; dependent visas; and student visas, such as F-1 and M-1. B visitor visa appointments and immigrant visa services continue to be unavailable. Importantly, Israeli citizens are eligible for visa-free visitor entries to the United States through the Electronic System for Travel Authorization (ESTA) for up to 90 days, subject to ESTA enrollment and approval.

Additionally, limited visa services have resumed and visa appointments can be scheduled for nonimmigrant work visas such as E-1, E-2, L-1, and H-1B; dependent visas; and student visas, such as F-1 and M-1. B visitor visa appointments and immigrant visa services continue to be unavailable. Importantly, Israeli citizens are eligible for visa-free visitor entries to the United States through the Electronic System for Travel Authorization (ESTA) for up to 90 days, subject to ESTA enrollment and approval.

Please join Greenberg Traurig shareholders Kate KalmykovBarbara Kaplan, and Marc Selden for an informative discussion on the importance of pre-residency tax planning for foreign nationals in the United States applying for permanent residency. 

The panel will address:

  • Taxation on worldwide income
    • U.S. federal income tax
    • U.S. federal estate and gift tax; generation skipping transfer tax considerations
    • State and local tax considerations
  • Examining proactive measures foreign nationals can take prior to obtaining permanent residency in the United States to minimize their tax liability
  • Post-residency tax strategies to implement if pre-residency tax planning was not performed

Who Should Attend:

  • F-1 and J-1 students, exchange students and scholars, researchers
  • Students working pursuant to OPT and STEM OPT
  • H-1B visa holders
  • L-1 visa holders
  • E-1 and E-2 visa holders
  • Mexican and Canadian TN visa holders
  • O-1 Extraordinary Ability visa holders
  • B1/B2 visitors considering moving to the United States
  • Adjustment of status applicants
  • Recent LPRs

Location:

The lunch-and-learn program will take place in-person at Greenberg Traurig’s NYC office in One Vanderbilt on Tuesday, Dec. 5 at 12 – 2:00 p.m. ET.

RSVP:

To RSVP for the Dec. 5 program, please click here.

This event is part of a series on emerging trends impacting investors and employers. To RSVP to future scheduled Lunch-and-Learn programs, please click here.

On Nov. 2., Greenberg Traurig, LLP’s Global Immigration & Compliance Practice will launch a live lunch-and-learn series on emerging trends impacting investors and employers. Immigration & Compliance, Tax, Financial Regulatory & Compliance, and Labor & Employment Practice attorneys will continue the series throughout 2024.

The events will discuss legal and compliance updates, drawing on the knowledge of firm attorneys from across relevant practices. All sessions are from noon to 2 p.m., include lunch, and will be held at the firm’s New York office at One Vanderbilt Avenue.

  • On Nov. 2, Global Immigration & Compliance Practice Co-Chair Kate Kalmykov, Financial Regulatory & Compliance Practice Co-Chair William B. Mack, and America EB-5 Visa CEO Marko Issever will discuss selecting an EB-5 investment project and targeted opportunities with a FINRA-licensed broker-dealer. They also will discuss applicable U.S. Securities and Exchange Commission rules, immigration laws, due diligence considerations, and more.
  • On Dec. 5, Kalmykov, Global Tax Practice Co-Chair Barbara T. Kaplan, and Private Wealth Services Shareholder Marc Selden will discuss tax planning strategies for high-net-worth individuals as part of their international pre-residency checklist. The presenters will address common challenges and missteps for those approaching the immigration process as well as for those who already hold permanent resident status.
  • On Jan. 9, 2024, Kalmykov and Immigration & Compliance Shareholder Nataliya Rymer will discuss the intricacies of the H-1B lottery and filing process.
  • On Jan. 18, 2024, Kalmykov and Rymer will discuss alternative work visa options for candidates not selected in the H-1B lottery. This session will focus on STEM OPT extensions, E-2 treaty investor visas, O-1 extraordinary ability visas, L-1a multinational manager and executive visas, and L-1B specialized knowledge visas, as well as discuss cap-exempt H-1Bs.
  • In February 2024, Kalmykov and Labor & Employment Group Shareholder Galit Kierkut will delve into legal issues at the intersection of employment and immigration laws, highlighting updates and trends in the New Year.

Click here to register for the series.

On May 1 the U.S. Department of State updated four provisions of the Foreign Affairs Manual relating to E visas. Published by the State Department, the FAM governs its operations, as well as the operations of the Foreign Service and other federal agencies. The updates relate to E-2 visa substantiality, E company registration, E-3 visa intention to depart, and the treatment of spouses and children of E visa applicants.

Continue reading the full article, published by Law360 Aug. 1, 2023. Subscription required.

Four Immigration & Compliance Practice shareholders at global law firm Greenberg Traurig, LLP are recognized in Lawdragon’s 2023 “100 Leading Immigration Lawyers” guide.

The guide recognizes the following Greenberg Traurig shareholders:

Continue reading the full GT press release.

Recently, Greenberg Traurig LLP’s Global Immigration & Compliance Co-Chair Kate Kalmykov (New York/New Jersey), Shareholder Jennifer Hermansky (Philadelphia), and Associate Luna Ma (Shanghai) visited locales in Asia to meet with clients and migration agents, and to discuss strategies for immigration to the United States.

Kate, Jen, and Luna met with more than 500 individuals, hosted over 20 seminars, and conducted numerous educational sessions as they traveled from Vietnam to Singapore. During their trip, the GT team provided valuable insights into the different types of work visas and employment-based green card options available to individuals who are seeking to work in the United States. The team discussed the E-2 visa, which is available to individuals coming to the United States to invest in and manage a business. They also discussed the L-1 visa, which is available to individuals who are transferring from a foreign company to a U.S. company to work in a managerial or executive capacity.

The team also provided insights into EB-1A and EB-1C green card options. The EB-1A is available to individuals who have extraordinary abilities in the sciences, arts, education, business, or athletics. The EB-1C is available to individuals who are coming to the United States to manage a U.S. company that is related to a foreign company they have worked for in the past. Both of these green card options have increased in popularity in recent years as many applicants seek permanent residency solutions in the United States post-COVID-19.

During their seminars and educational sessions, the GT team also reviewed the EB-5 program, which allows foreign nationals to invest in a business in the United States that creates 10 full-time jobs for foreign workers in order to obtain a green card. They shared valuable insights into the processing times for EB-5 applications and discussed the changes implemented by the 2022 EB-5 Reform and Integrity Act. The team also discussed the positive results they have received by filing mandamus actions in federal court to speed up processing times for I-526 and I-829 applications already in process with U.S. Citizenship and Immigration Services.

GT team members will return to Vietnam next month to meet with clients and provide valuable insights into the U.S. immigration process.

Click here to learn more about GT’s Immigration & Compliance Practice.

Jen and Luna meet with clients in Vietnam
Jen and Luna in Vietnam
Kate presents at a client seminar in Vietnam
Jen meets with clients in Vietnam
Kate and Jen meet with clients in Taiwan

On Dec. 15, 2022, Congress passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (the “2023 NDAA”), which contains two key changes to the eligibility for E visas:

  • First, Portugal has now been designated as a treaty country. Thus, Portuguese passport holders are eligible to obtain E-1 and E-2 visas as Treaty Trader/Treaty Investors.
  • Second, the 2023 NDAA inserted a limitation on the eligibility for an E visa by adding a new requirement that E visa applicants who have acquired citizenship of a treaty country via financial investment must have been “domiciled” in the treaty country for a “a continuous period of not less than three years at any point before applying” for the E visa. Notably, this new requirement does not apply to existing or previous E visa holders.

The purpose of this provision is to limit a pathway to U.S. residency that was previously open to individuals who applied for citizenship by investment programs in certain E visa treaty countries, primarily Grenada. In these scenarios, the individual from a non-E visa treaty country would obtain citizenship in Grenada via investment, and then use their newfound Grenadian citizenship to apply for an E visa. Thus, the value of the Grenadian passport to these individuals was the ability to obtain an E visa.

Individuals from countries where investment migration is popular, such as India and China, have long had a desire to access the United States for purposes of school, investment, or retirement, among other reasons. Because China and India are not E visa treaty countries, individuals from those countries have less options for migration to the United States, particularly if they do not have a qualifying family relative. Obtaining citizenship from a country such as Grenada became a worthwhile endeavor in order to access the United States. This was especially so because the E visa has many advantages, such as a relatively low amount of investment, the ability to include spouses and dependent children under the age of 21 with one investment, long visa validity periods, and the ability to renew the E visa indefinitely.

For some, this provision takes effect immediately. Thus, an individual who has made, or intends to make, an investment in a citizenship by investment country eligible for an E visa finds themselves newly ineligible for such E visa, unless they can show they have “…been domiciled for a continuous period of not less than three years at any point before applying for…” an E visa.

The term “domicile” is not found in the 2023 NDAA, and it is unclear how the U.S. Department of State will apply this requirement to E visa applicants. The word “domicile” under U.S. law pertaining to immigration has been subject to change and dispute over the years because the Immigration and Nationality Act (INA) does not generally define “domicile.”

In other contexts, such as the use of “domicile” under INA 213A as interpreted by the State Department (the provision of law relating to the domicile of a U.S. sponsor), “domicile” means the place where an individual has their principal residence with the intention to maintain that residence for the foreseeable future. In this context, under the Foreign Affairs Manual issued by the State Department, evidence that an individual is “domiciled” in the United States can include (i) opening a bank account; (ii) transferring funds to the United States; (iii) Making investments in the United States; (iv) Seeking employment in the United States; (v) Registering children in U.S. schools; (vi) Applying for a Social Security number; and (vii) Voting in local, State, or Federal elections.

This State Department interpretation is generally consistent with other areas of U.S. immigration law that define “domicile,” such as certain areas of law defining U.S. citizenship by adopted children[3] and residents of the Commonwealth of the Northern Mariana Islands,[4] which also generally defines “domicile” as the place where an individual maintains a residency with the intent to reside in that place for an indefinite period. These definitions are consistent with the common law interpretation of “domicile,” which also generally defines a “domicile” as a “person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.”[5]

While this is not an exhaustive review of U.S. law as it relates to the term “domicile,” it does provide a general idea of what to expect once the State Department announces guidance on this change in law. Applying this guidance to the new E visa requirement of “domicile” could entail requiring the applicant to show a residence in the treaty country, investments in the treaty country, bank accounts in the treaty country, funds in the treaty country, employment in the treaty country, participation in the treaty country elections and/or civic life, and/or, if applicable, attendance at schools in the treaty country by children of the applicant. Further, as like most areas of U.S. immigration law, this will not be a one-size-fits-all approach, and a totality of the circumstances review in the discretion of the adjudicating consular officer should be expected. Applicants interested in applying for an E visa after acquiring citizenship by investment will need to wait for the State Department to issue guidance, likely in the form of an updated Foreign Affairs Manual.

Finally, it remains to be seen whether these changes in the 2023 NDAA violate U.S. treaty obligations for E visa countries with citizenship by investment programs (e.g., Grenada, Turkey, Austria, Jordan, etc.). Generally speaking, E visa treaties require each party to permit and treat investment activities in the United States on a basis no less favorable to that accorded the other party, must provide “fair and equitable treatment” to the other party, to not impair, through unreasonable or discriminatory means, investments of a party, among other requirements.[6] Given the amount of investment seen by some of these countries solely due to the access to an E visa, and the less favorable treatment nationals of those countries will now receive, particularly in comparison to other E visa countries without citizenship by investment programs, it is conceivable these E visa countries raise a diplomatic issue with these new provisions.


[1] See 9 FAM 601.14-7(a)(1).

[2] See 9 FAM 601.14-7(a)(3)

[3] See INA 101(c) and INA 101(a)(33)

[4] See Section 1005(e) of the Covenant to Establish the Commonwealth of the Northern Mariana Islands in Political Union with the United States (Act of Mar. 24, 1976, Public Law No. 94-241, 90 Stat. 263, 48 U.S.C. 1801). See also 8 FAM 302.2-4.

[5] See Black’s Law Dictionary (11th ed. 2019). See also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (defining “domicile” as “physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there”), cited in in the immigration context by Morel v. INS, 90 F. 3d 833 (3rd Cir., 1996).

[6] See e.g., Treaty between the Government of the United States of America and the Government of the Hashemite Kingdom of Jordan Concerning the Encouragement and Reciprocal Protection of Investment, with Annex and Protocol, signed at Amman on July 2, 1997, or The Treaty between the United States of America and Grenada concerning the Reciprocal Encouragement and Protection of Investment, signed at Washington on May 2, 1986.

Greenberg Traurig Immigration & Compliance Practice Shareholders Kate Kalmykov and Nataliya Rymer were grateful for the opportunity to meet with Consular Officials at the U.S. Embassy in Paris and tour their American Citizen Services and Consular Visa Services sections as part of the American Immigration Lawyers Association (AILA) RDC Conference. Below are some key updates addressed during these meetings:

  1. Confirmation that third country nationals will be accepted for nonimmigrant and immigrant visa processing at the U.S. Embassy in Paris, including Russian, Iranian, and Ukrainian nationals. As a reminder, acceptance of a visa application and scheduling of a visa appointment do not guarantee visa application approval, visa issuance, or negate any grounds for refusal.
  2. The Consular Section at the Embassy reports having decreased their visa appointment wait times along with interview-waiver visa processing times significantly.
  3. E-2 treaty investor visas constitute a high portion of the applications at the Consulate, with interviews conducted on the Monday of each week. Consular officials confirmed they will adjudicate third country E-2 visa applications, but cautioned that when the business relates to specific country conditions, applicants may find it easier and more beneficial to apply at the U.S. Consular Post in their home country, even if the wait time is longer. Nonimmigrant Visa Section officials confirmed that there have been some denials related to E-2 treaty investor applicants seeking extensions of status whose businesses applied for, and received, Paycheck Protection Program (PPP) loans. Consular Officials stated that, rather than the receipt of the PPP loan itself having caused the denial, the adjudicating officers want to see extensive proof that the PPP loan was used for its stated purpose, in order to address wide concerns regarding fraud. Furthermore, applicants must be able to demonstrate that, since taking out the PPP loan, the companies have continued operations, generated revenues, and created or maintained jobs. Separately, rather than demonstrating that financial and employment projections outlined in the business plan were met with exact precision, businesses should document operations, growth, and efforts to meet these projections. 
  4. The Consular officials stressed that the Consular Section is unable to expedite any cases undergoing administrative processing, as this processing is undertaken at the State Department headquarters in Washington, D.C., rather than at the Post.
  5. F-1 Foreign Visas are processed at high volumes, with scheduling of interviews and visa issuance continuously prioritized.
  6. Requests for expedited visa appointments can be made where circumstances warrant, and such circumstances will have to be explained to the Post in an expedited appointment request.
  7. The Embassy does offer Privacy rooms for sensitive situations and applicants.
  8. Supervisor’s desks are located behind the interviewing Consular Officers, and therefore, Supervisors are able to hear, and address, any more complex issues arising during interviews.
  9. Consular officials stressed that, because supervisors are close in proximity during interview processes, any denials resulting during interviews are vetted and approved by them. Therefore, applicants are encouraged to reapply after denials, rather than asking for reconsideration of the previously submitted application. Furthermore, to the extent possible based on staffing levels, the Consular Section attempts to assign different officers for reapplications, to ensure that each application is reviewed fully. 
  10. Consular Officers at the U.S. Embassy in Paris speak many different languages and are therefore able to offer translation as needed. If a visa applicant appears with a translator, the translator may be asked to leave if the Consular staff have someone fluent in the applicant’s native language.
  11. U.S. Citizen Services at the Embassy in Paris will accept third country applicants seeking renunciation of citizenship.
  12. Lost or stolen U.S. passports can be issued quickly by the American Citizen Services. As a note, U.S. citizens traveling in France are advised to keep their passports in a hotel safe, due to high levels of pick-pocketing.