E-2 visa renewal and hiring employees

[Alex03 0]

Hello,

 

In November 2018 my wife and I got an E-2 visa, the business actually opened in November 2019 because we had to renovate the place, getting several permits, etc, so basically we began working just a few months before COVID hit the US. We've been lucky enough to made it through until now, it's a small food business, even though of course we didn't make any real money because we're in Los Angeles and simply maintaining alive a business requires a lot of money. Just to give you an idea, 53% of LA restaurants will not reopen, so we made a little miracle.

 

Next year we'll have to renew our E-2 visa and my immigration lawyer strongly suggested to hire 1 or 2 part-time employees because this would help a lot during the process and it would "compensate" the fact that the company didn't make any profit.

 

Now I perfectly know that one of the E-2 requirements is to create jobs for residents and it should be a profitable company, it totally makes sense, but does it apply even during this endless pandemic? My wife and I never got a single salary since we opened, all the money we made went directly into the business itself and we don't always break even, luckily we had some personal funds, but assuming a part-time employee would mean adding $1,500/2,000 expense per month, and we're absolutely not in the economical situation to do that, as I said we don't have a salary at the moment.

And regarding being profitable, I mean, how is a small business like ours supposed to go against all the odds making a good profits when there is a global recession and tens of thousands of business, even historical ones, went out of business?

And the only help we received was a $1,000 grant, we couldn't even apply for the PPP being self-employed.

 

I'm trying to understand if my lawyer is telling me this just to play safe on their side or if actually the American Immigration doesn't care about the pandemic and for them those are the rules, no matter what's going on around the world, because in that case we made it through the pandemic just to be shut down by book rules...

 

Thanks!

[Crazy Cat 41,894]

5 minutes ago, Alex03 said:

I'm trying to understand if my lawyer is telling me this just to play safe on their side or if actually the American Immigration doesn't care about the pandemic and for them those are the rules, no matter what's going on around the world, because in that case we made it through the pandemic just to be shut down by book rules...

VJ is not a good source for such legal advice.  

Edited November 20, 2020 by Lucky Cat

[Alex03 0]

3 minutes ago, Lucky Cat said:

VJ is not a good source for such legal advice.  

Well even a personal experience of someone who got a renewal during the pandemic would be helpful. 

[igoyougoduke 1,656]

52 minutes ago, Alex03 said:

Well even a personal experience of someone who got a renewal during the pandemic would be helpful. 

well the visa is related to you creating jobs and running a business.  USCIS adjudicator is not going to bend over backwards if you cannot meet your visa requirements. Its your responsibility to figure out your business so you meet the requirements of visa. How you figure out is probably not the adjudicators responsibility 

 

Just the truth 

 

[Alex03 0]

18 minutes ago, James120383 said:

well the visa is related to you creating jobs and running a business.  USCIS adjudicator is not going to bend over backwards if you cannot meet your visa requirements. Its your responsibility to figure out your business so you meet the requirements of visa. How you figure out is probably not the adjudicators responsibility 

 

Just the truth 

 

Maybe my English is not good enough and I'm not able to communicate what I'd like to understand, I'll try again: I perfectly know at the moment I'm not complying with the requirements written in the E-2 rules, but that's due to the COVID situation that impacted the whole world, not only me. If for you using the pandemic is just an excuse then fine, I'm glad for you COVID didn't impact at all your life, but what I'm asking here is: did anyone renew a E-2 visa during the pandemic? Do the same rules still apply or they understand the situation so they're somehow less strict at the moment?

[SusieQQQ 11,586]

I think what James said is harsh but true. They usually have very specific guidelines to grant and renew visas. While I think anyone reading your story would be extremely sympathetic to the circumstances and how hard you guys have worked, I also don’t think there is much discretion involved in the decisions they can take, because otherwise people could always find something that was out of their control to argue their case about. I would also rely more on your lawyer than on the advice on this site though. Hoping your business picks up soon.

Edited November 20, 2020 by SusieQQQ

[Alex03 0]

31 minutes ago, SusieQQQ said:

I think what James said is harsh but true. They usually have very specific guidelines to grant and renew visas. While I think anyone reading your story would be extremely sympathetic to the circumstances and how hard you guys have worked, I also don’t think there is much discretion involved in the decisions they can take, because otherwise people could always find something that was out of their control to argue their case about. I would also rely more on your lawyer than on the advice on this site though. Hoping your business picks up soon.

Susie, as I said I know what the rules are but, since both you and James are in California as well, I guess that also in SF just like in LA they stopped months ago the evictions for both residential and commercial buildings, no? Is that something normal? Absolutely not. Does that mean that in the future people will have any kind of excuse for not paying a rent? I don't think so, what we're living in is something completely new and unexpected. We never missed a singles payment for the apartment rent, for the business rent, for the utilities, we always paid everything. Some of our neighbors didn't pay anything since May and they're still there, no one can touch them. This is why I'd like to have a first hand experience from someone because I'm pretty sure that if I google "do I have to pay the rent?" the answer is a giant yes, but nowadays it's not like that anymore. Right now I'm seeing a world where basic rules, for the moment, don't apply anymore, I don't need to be reminded every post that there are certain rules. Simply maintaining alive our small business requires more than $10k/month, if we've been able to do it opening 2 months before the pandemic I'm pretty sure that without COVID we'd be making at least 2 or 3 times more, so we'd also actually need employees.

 

If the rules don't change a little because for the immigration there is no recession and no pandemic then ok, I'll accept the decision and I'll take some time to realize I just thrown $250k in the trash because I couldn't hire a part-time employee for a few months after I paid tens of thousands of dollars to independent contractors, at least I know we tried to do everything that was in our power because the last off-day we had has been January 1st, after that we never closed a single day.

[SusieQQQ 11,586]

You are confusing us saying what we think will happen, with lack of empathy for your situation. And a rent holiday to give a break to US residents is nothing to do with USCIS.
I know that for immigration related issues, Covid has generally not been an excuse. Example 1: Green card holders who have stayed out longer than a year because of Covid find that embassy websites specifically tell them they still need to apply for new SB1 visas to return, despite Covid being a reason, because one year out the US is one year out the US regardless of the pandemic. Example 2: Petitioners who lose their jobs because of Covid still have to find co-sponsors to be able to file affidavits of support for the immigrants they are sponsoring, because not meeting the required income is not meeting the required income regardless of the reason.

 

I don’t know how you can find someone who renewed recently. Maybe you can do a search for past events like the global financial crisis and see how renewals fared in the recession then. Like I said already, your lawyer is the one most likely to give you sound advice right now. Does he not have other clients renewing now too? You can maybe get some first hand (or close enough) experience there. 

[jan22 3,056]

6 hours ago, Alex03 said:

Maybe my English is not good enough and I'm not able to communicate what I'd like to understand, I'll try again: I perfectly know at the moment I'm not complying with the requirements written in the E-2 rules, but that's due to the COVID situation that impacted the whole world, not only me. If for you using the pandemic is just an excuse then fine, I'm glad for you COVID didn't impact at all your life, but what I'm asking here is: did anyone renew a E-2 visa during the pandemic? Do the same rules still apply or they understand the situation so they're somehow less strict at the moment?

I disagree with your lawyer; I would not waste any of my limited business funds hiring employees at this point.  While some E2s qualify by creating jobs, it isn't the norm and hiring only a couple of part-time people shortly before visa renewal time would not be convincing, especially as the business clearly does not need to have them at the moment.   I don't think it would make your case stronger.

 

The same rules do apply, even during a pandemic -- the main one that will cause some problems for you is that you must be operating a "more than marginal business", i.e., one that generates income sufficient to support your family.  The bright spot of your situation is that the standard is your business must have the capacity to generate that income within five years of the time your E2 status begins.  So, for the visa renewal, you can show what you have already put into the business and how you have managed to keep it afloat even through the lockdown periods -- use that as a way to demonstrate the capacity of the business in more normal times, and show how you plan to reach that capacity in the next two to three years.  That's one way that the visa officer can take into account the current situation while also adjudicating the visa in accordance with all the required guidelines.

[Alex03 0]

5 hours ago, SusieQQQ said:

You are confusing us saying what we think will happen, with lack of empathy for your situation. And a rent holiday to give a break to US residents is nothing to do with USCIS.
I know that for immigration related issues, Covid has generally not been an excuse. Example 1: Green card holders who have stayed out longer than a year because of Covid find that embassy websites specifically tell them they still need to apply for new SB1 visas to return, despite Covid being a reason, because one year out the US is one year out the US regardless of the pandemic. Example 2: Petitioners who lose their jobs because of Covid still have to find co-sponsors to be able to file affidavits of support for the immigrants they are sponsoring, because not meeting the required income is not meeting the required income regardless of the reason.

Susie, it's clear that rent breaks have nothing to do with immigration, but my point was to show you guys that rules can be applied in different ways if there is an extraordinary situation. Otherwise it's like saying "hey, if tomorrow there is a war no matter what you have to show at work", ehm, no.

 

Regarding the GC holders I don't know what to say, it's not my situation, if you have a GC it's because you want to stay in the US so I have no idea why someone wouldn't want to return since the flights are pretty much empty.

 

And if you have a sponsor that's a completely different thing, because you were getting paid by your sponsor, those people didn't invest any money, so despite the fact that they can't stay anymore (and I understand it's a big deal) they still have all their money. For us moving to the US was a huge bet, we've been saving money for years, and we were totally ready to accept a fail because it was literally the case "go big or go home", because or we make some serious money and we can afford a certain lifestyle or we'd rather prefer going back to Europe than just working like crazy to simply survive.

 

Quote

I don’t know how you can find someone who renewed recently. Maybe you can do a search for past events like the global financial crisis and see how renewals fared in the recession then. Like I said already, your lawyer is the one most likely to give you sound advice right now. Does he not have other clients renewing now too? You can maybe get some first hand (or close enough) experience there. 

I asked that question to my lawyer and I'm still waiting the answer. I don't know your story but I can tell you from my experience every single immigration lawyer we found pretty much wants cases that are 99.9% likely to be accepted, if they're not sure they won't take the case, they don't wanna fight with a consulate for an immigration visa, they just want the easy money.

 

1 hour ago, jan22 said:

I disagree with your lawyer; I would not waste any of my limited business funds hiring employees at this point.  While some E2s qualify by creating jobs, it isn't the norm and hiring only a couple of part-time people shortly before visa renewal time would not be convincing, especially as the business clearly does not need to have them at the moment.   I don't think it would make your case stronger.

 

The same rules do apply, even during a pandemic -- the main one that will cause some problems for you is that you must be operating a "more than marginal business", i.e., one that generates income sufficient to support your family.  The bright spot of your situation is that the standard is your business must have the capacity to generate that income within five years of the time your E2 status begins.  So, for the visa renewal, you can show what you have already put into the business and how you have managed to keep it afloat even through the lockdown periods -- use that as a way to demonstrate the capacity of the business in more normal times, and show how you plan to reach that capacity in the next two to three years.  That's one way that the visa officer can take into account the current situation while also adjudicating the visa in accordance with all the required guidelines.

Thanks for your answer, Jan. Even for for it'd look a little suspicious hiring a part-time employee few months before the visa renewal, and also as you correctly pointed out it wouldn't make a lot of sense from a financial point of view: we don't have a salary but we're paying one to an employee?

 

Anyway I'm getting in touch also with other lawyers and people I know who work in the immigration field, we'll see what they're gonna say about this. For sure it's a very frustrating situation.

[Boiler 45,541]

21 hours ago, Alex03 said:

Hello,

 

In November 2018 my wife and I got an E-2 visa, the business actually opened in November 2019 because we had to renovate the place, getting several permits, etc, so basically we began working just a few months before COVID hit the US. We've been lucky enough to made it through until now, it's a small food business, even though of course we didn't make any real money because we're in Los Angeles and simply maintaining alive a business requires a lot of money. Just to give you an idea, 53% of LA restaurants will not reopen, so we made a little miracle.

 

Next year we'll have to renew our E-2 visa and my immigration lawyer strongly suggested to hire 1 or 2 part-time employees because this would help a lot during the process and it would "compensate" the fact that the company didn't make any profit.

 

Now I perfectly know that one of the E-2 requirements is to create jobs for residents and it should be a profitable company, it totally makes sense, but does it apply even during this endless pandemic? My wife and I never got a single salary since we opened, all the money we made went directly into the business itself and we don't always break even, luckily we had some personal funds, but assuming a part-time employee would mean adding $1,500/2,000 expense per month, and we're absolutely not in the economical situation to do that, as I said we don't have a salary at the moment.

And regarding being profitable, I mean, how is a small business like ours supposed to go against all the odds making a good profits when there is a global recession and tens of thousands of business, even historical ones, went out of business?

And the only help we received was a $1,000 grant, we couldn't even apply for the PPP being self-employed.

 

I'm trying to understand if my lawyer is telling me this just to play safe on their side or if actually the American Immigration doesn't care about the pandemic and for them those are the rules, no matter what's going on around the world, because in that case we made it through the pandemic just to be shut down by book rules...

 

Thanks!

Sounds like you had an initial 2 year E2 based on a business plan you submitted with your application.

 

As I am sure you are aware the E2 is not to just provide the applicant/ and spouse with a job, oit is an investment visa.

 

What does your business plan show as far as employees are concerned.

 

Normal for the trailing spouse to get an EAD and work outside the business, sounds like you are both working in the business.

[Alex03 0]

6 hours ago, Boiler said:

Sounds like you had an initial 2 year E2 based on a business plan you submitted with your application.

It was just a 1 year E2 visa because when we went to the interview the place renovation wasn't complete, and for the interviewer showing pictures of the renovation plus all the expenses already paid to the contractor, electrician, plumber, architect, city fees, machineries and I don't remember what else, wasn't enough. Now we're here with the I-94.

 

Quote

As I am sure you are aware the E2 is not to just provide the applicant/ and spouse with a job, oit is an investment visa.

As I said 15385 times yes, I am perfectly aware of that.

 

Quote

What does your business plan show as far as employees are concerned.

2 employees by the 3rd year. We just ended year 1 few days ago.

 

Quote

Normal for the trailing spouse to get an EAD and work outside the business, sounds like you are both working in the business.

Yes, we both work at the business, just like explained in the business plan, I don't understand what the problem is about my spouse working in the business. Am I the first one to ever do that?

[Boiler 45,541]

When does your E2 expire? Seems it was issued for 2 years ago, quite often the first one is for 2 years but that would mean it would expire sometime this month.

[Alex03 0]

13 minutes ago, Boiler said:

When does your E2 expire? Seems it was issued for 2 years ago, quite often the first one is for 2 years but that would mean it would expire sometime this month.

The E2 expired in November 2019, but since we left the country and came back in September 2019 the immigration always gives you a 2-year-valid I-94 form if your E-2 visa is still valid, and that is what is important to legally stay in the US.

Edited November 21, 2020 by Alex03

[Boiler 45,541]

Well not always anyway you are here landlocked and sounds like the Lawyer is giving you a heads up about the need to meet your Business plan obligations this year, which will be something he would want to show when either applying for continuing status in the US or seeking a Visa.