Q: I’d like to learn more about opening a business in the United States. I currently own a business here and am thinking about opening a branch in Florida. In addition, my brother-in-law and I are considering plans to start an entirely new business in the United States. Are there certain types of visas that would facilitate either of these dreams? What would I need to bring with me to my interview in order to be issued such a visa?

A: Yes, there are visas available to Jamaican (and certain other) nationals who wish to open a business in the United States.

E-2 Treaty Investor Visa

If you wish to open your own business in the United States, the E-2 Treaty Investor visa is available to Jamaican nationals. The Treaty Investor visa provides non-immigrant status to a foreign national who is coming to the United States to develop and direct the operations of an enterprise in which he/she has invested, or is in the process of investing, a substantial amount of capital.

Legal requirements

Applicants for the Treaty Investor visa must meet all of the requirements detailed below and have substantial documentation to support each claim. Jamaicans are eligible to apply for Treaty Investor visas because the United States and Jamaica do have the required treaty. To apply at the US Embassy in Kingston, the applicant must reside in Jamaica or the Cayman Islands. Applicants who do not reside in Jamaica or the Cayman Islands must apply at the US Embassy in their country of residence.

The applicant must have invested or currently be in the process of investing a substantial amount of capital. For the purposes of this visa class, the term “substantial” should be understood as sufficient to ensure the successful operation of the enterprise. The investment must be made in a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment. The funds must be irrevocably committed to the enterprise such that the investor has placed his or her funds at risk in the commercial sense. Merely transferring a sizeable amount of cash from the investor’s bank account to a bank account belonging to the new company (but still administered by the investor) does not constitute an investment for the purposes of this visa category because the investor has not actually yielded control of the funds or placed them at risk. Furthermore, loans secured with the assets of the investment enterprise do not qualify.

The investment cannot be marginal. It must generate significantly more income than just enough to provide a living for the investor and his/her family, or it must have a significant economic impact in the United States. The interviewing consular officer will need to see how the applicant plans to expand his/her business after making the initial investment. However, there are no fixed percentages that exist in order for an investment to be considered substantial — though a business plan with low operating costs may be expected to demonstrate a higher initial investment than a similar business with high operating costs. In addition, the investor must be coming to the United States to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialised skill capacity. Ordinary skilled and unskilled workers do not qualify. Finally, the applicant must intend to depart the United States when his or her Treaty Investor status ends.

The visa is valid for a period of five years and the applicant may reside in the United States for the period authorised by US Customs and Border Protection up to the validity of the visa (five years). The visa is renewable.

L-1 Intracompany Transferee Visa

For those already operating a business in Jamaica and wishing to open a branch in the United States, an L-1 Intracompany Transferee visa might be the best option. This type of visa provides non-immigrant status to a foreign national who has been employed in Jamaica for one of the last three years, and who will be employed by a branch, parent, affiliate, or subsidiary of that same company in the United States. The applicant must be working in a managerial, executive, or specialised knowledge capacity in Jamaica and be destined for a similar role in the United States. In order to apply for this type of visa, applicants must first submit an I-129 petition to the United States Citizenship and Immigration Service (USCIS) and it must be approved.

Legal Requirements for an Intracompany Transferee Visa

The company in the United States must be the same firm, corporation, or other legal entity, or be a parent, branch, affiliate, or subsidiary of the same company that the applicant is currently employed by in Jamaica. The applicant must be a manager, executive, or someone with specialised knowledge, who is going to the United States to work in a managerial, executive or specialised-knowledge position. The US company and the applicant must have a valid employer-employee relationship. Furthermore, the American company must do business in the United States and at least one other country.

To qualify, the applicant must have worked for the company for at least one of the last three years. In addition, the applicant must not have received other visas with time limits that would disqualify him/her for this visa (e.g. an Exchange Visitor visa that requires the applicant to spend two years outside the United States upon completion of their program). The applicant must show that sufficient physical premises to house the new office have been secured. The intended US operation must be able to support an executive or managerial position within one year of approval of the petition. The applicant must have the authority to hire staff and have plans to do so. The applicant must also have wide latitude in making decisions about the goals and management of the organisation. Finally, the applicant must intend to depart the United States when his or her Intracompany Transferee status concludes.

When an Intracompany Transferee applicant is coming to open an office in the United States, the visa is valid for a period of one year and the applicant may reside in the United States for the period authorised by US Customs & Border Protection up to the validity of the visa (one year). After that initial year, the visa is renewable and the applicant could be granted up to a three-year visa. This initial one-year limitation generally does not apply to an applicant who plans to work for an enterprise that already has branches operating in the United States.

For more information about Treaty Investor and Intracompany Transferee visas, please visit the US Department of State page at www.travel.state.gov/visa/temp/types/types_1275.html.

The American Embassy staff in Kingston will answer any questions you may have regarding US consular law, regulations and/or practice. In order to respect the privacy of applicants, the embassy will not answer questions on specific personal applications.

Send your questions to: editorial@jamaicaobserver.com and we will send them to the embassy.