Topic: Planned to apply for E2 treaty investor visa. Did not book visa appointment. Have I done anything wrong?

[Randall8934 0]

This will be pretty long, but I’m asking you to help me out here as I’m a very careful person and I want to stay on the friendly side with US immigrations so this has been causing me some headache lately.

 

Me and my friend was employed by a European company in February 2017. The company had big global expansion plans and offered us the opportunity to cover the US market. The deal would be that they would own a US subsidiary together with me and my friend and we would eventually move to the US and work on E2 treaty investor visas.

 

Over the summer, we hired an E2-specialized lawyer that was very experienced and gave us a good feeling. They told us the process was to register the US subsidiary, apply for the company, and later apply for us individually, starting with me.

 

To test the US market, we had managed to book a lot of prospective client meetings in the US to the European parent company, and so we spent a lot of time in the US on ESTA (marked business trip), starting in August 2017.

 

While we were in the US on our business trip, the law firm registered the US company in Delaware and one more state and me, my partner and the European parent company as share holders. ”Directors” of this company was set out to be me, my colleague and the owners of the European parent company (who were still in Europe). The officer titles (CEO, Treasurer, President) were put on me. I asked them if this was really a good idea, as I worried it might imply I’m working for the US company, but the lawyers told me that merely holding an officer’s title for a US company, e.g. CEO or President, does not per se mean that you are an employee or working for that company. I trusted their advise and signed my name.

 

As President, I signed various documentation (W9, DE annual report, tax return etc.), some while in the US and some while being outside. I was always told by the lawyers that this was fine as I was not an employee of the company. I was just an employee of the European parent company, on a business meeting trip in the US.

 

In January 2018, the lawyers prepared my visa application (with DS-160) and submitted to the embassy. However, business we’rent going as well as we had hoped so I decided to put a hold to book my visa interview.

 

We instead wanted to see if we we’re able to get any clients to the European parent company, and continued on ESTA (business) trips – totaling almost 200 days over a year (stupid and too much, I know. But never overstaying and we we’re doing lots of tourist trips – but always marked business as primary reason).

 

We managed to close 2 customers, and they were invoiced from the European parent company.

 

However, in the fall of 2018, my colleague and I felt that we did not believe in the business as much as we did in the beginning. Therefore, we continued working with the parent company in Europé, and transfer our shares and officer titles to the managers.

 

We also had a bank account, although without any business transactions within, only bank fees and a tax franchise fee payment. All these administrative tasks were handled by the lawyers.

 

Today, I feel a little bit uneasy about what happened, even though our lawyers repeatedly say we haven’t done anything wrong. Therefore, we just decided to shut down the US subsidiary and bank account, and move the 2 contracts we have with the clients to the European parent company.

 

I am very worried about a few things:

- Filling out ESTA next time, and being asked about whether I’ve without US gov’t prior permission been employed by a US company but held the CEO and President titles for 6 months: what is the real answer here? My biggest fear is accidentally misrepresentation

- In a future visa interview (e.g. O1), they may ask about why I spent so much time in the US these 2 years. The reason is that we had client meetings, and did a lot of tourist traveling combined with this. However, I don’t know if I’m supposed to mention the US subsidiary? It was not involved in ANY business activities.

- Have the lawyers given me wrong information? If so, can I refer to that if it turns out that I have done anything wrong?

- Can anything be used against me here? The cancelled visa application? Submitted annual reports/w9/other official documents related to US company administration

 

 

So so so thankful for the ones reading this and could give me some advice. I’m in a very depressing moment right now as I’ve never been in any trouble with law or immigrations before. I truly hope nothing wrongful has been done here.

 

  

[USS_Voyager 1,972]

Well, I am not a lawyer, but as a layperson, it is my opinion that CEO is still an employee of the organization and if you perform any work at all while in the US, you need work authorization. I think they should have done an L1 and sent you guys in that way. There is a specific L category for companies to send the initial staff members to open a US office. My suggestion is to get a second opinion from a different lawyer.

[SusieQQQ 11,587]

You and your friend were employed by a company that then opened an office in the US naming you both as partners, then directors etc with signing powers? Was the lawyer you mention paid for by the company? I would definitely get a second legal opinion. I don’t know what was going on, but something sounds not 100% legit about the setup as you describe it.  

[US-UK 32]

Second opinion which would, among other things, revisit how your role was titled and described in various documents (e.g., Articles of Incorporation, SEC filings) and policies (e.g., D&O).

[Randall8934 0]

9 hours ago, USS_Voyager said:

Well, I am not a lawyer, but as a layperson, it is my opinion that CEO is still an employee of the organization and if you perform any work at all while in the US, you need work authorization. I think they should have done an L1 and sent you guys in that way. There is a specific L category for companies to send the initial staff members to open a US office. My suggestion is to get a second opinion from a different lawyer.

According to our lawyer, CEO is only an officer's title and not an employee title. Thanks, will look into a second opinion.

 

9 hours ago, SusieQQQ said:

You and your friend were employed by a company that then opened an office in the US naming you both as partners, then directors etc with signing powers? Was the lawyer you mention paid for by the company? I would definitely get a second legal opinion. I don’t know what was going on, but something sounds not 100% legit about the setup as you describe it.  

Yes we were friends at the time they employed us, does that make a difference? 

 

The only office they had was a virtual address at the lawyer's business services, which we never visited.

 

The lawyer was paid for by the parent company. How come?

 

 

6 hours ago, US-UK said:

Second opinion which would, among other things, revisit how your role was titled and described in various documents (e.g., Articles of Incorporation, SEC filings) and policies (e.g., D&O).

Thanks, with "revisit", you mean looking at the documents and deeming whether we were employed or not?

 

What type of second opinion lawyer would you recommend? Another one specialized in E2 visas?

[SusieQQQ 11,587]

Ok, let me approach this a different way and ask you a question: are you and your friend of a level of work experience/background that you would be offered positions as directors/CEOs/presidents/treasurer (all at the same time) of a brick and mortar company in your home country? 

 

What progress was being made towards the “substantial investment of capital” required in a “bona fide enterprise” as required by E2? 

 

Curious as to what the business of the parent company is. 

 

[Randall8934 0]

On 6/8/2019 at 4:21 PM, SusieQQQ said:

Ok, let me approach this a different way and ask you a question: are you and your friend of a level of work experience/background that you would be offered positions as directors/CEOs/presidents/treasurer (all at the same time) of a brick and mortar company in your home country? 

 

What progress was being made towards the “substantial investment of capital” required in a “bona fide enterprise” as required by E2? 

 

Curious as to what the business of the parent company is. 

 

Yes we are, we both have a top-university degree and 5+ years of work experience. How come that is interesting?

 

No progress was made towards the investment of capital, as it was decided to not continue with the visa application.

 

Can you elaborate on the last question?

 

Thanks

[SusieQQQ 11,587]

39 minutes ago, Randall8934 said:

Yes we are, we both have a top-university degree and 5+ years of work experience. How come that is interesting?

 

No progress was made towards the investment of capital, as it was decided to not continue with the visa application.

 

Can you elaborate on the last question?

 

Thanks

Just 5 years of work experience is hardly the usual background of CEOs, directors etc. Really, it’s not. Even in the Bay Area which is full of startups run by younger people.

 

I am curious as to how familiar you are with the requirements of E2. The description of your enterprise in the US .... virtual office, no business transactions in the bank account (implies no bona fide enterprise), guys with just 5 years experience with great titles but not doing anything other than signing off things and certainly not with the actual level of responsibilities detailed in the E2 description, a visa application apparently prepared without the investment that is needed to be made for that application, etc - these off the top of my head without going back and looking at the full set of requirements, so there are probably more... it seems to be a lot of red flags to me. Like I said before, I don’t know what was going on, but it seems to me like the company was trying to circumvent some kind of regulation, and the fact that you are being so cagey about their line of business just adds to that impression. It sounds like you were not complicit in whatever was going on. 

 

I don’t know tbh about the ESTA question, it does sound untruthful to say you were not employed by a US company if such a company was incorporated there and you held senior titles (any titles really, but especially those).  “I was CEO but I didn’t work for them” doesn’t ring true. I presume there is space on the application to explain your answer.

 

You may well be asked in an interview about all the trips you made and what their purpose was. You don’t need to volunteer any information in a visa interview, but if you are asked a question you do need to answer it properly.