Havnfun

I have a question regarding applying for two visas at the same time. Here is some background information that hopefully will help someone understand our situation and will be able to give me some advise.

My husband and I are both Canadians living in Calgary. We have applied for an EB5 Visa and have invested with American Life in Seattle. Our application was received by USCIS on August 31/07. Due to the delays with immigration I am concerned that we will not have our application approved by August. We have a 15 year old son who will be entering 11th grade in September and I would prefer that he not have to move schools a couple of months in. So I am looking at some other options that we might have while our EB5 is in process.

We have a business here in Calgary that we have owned for 14 years and are planning on buying/starting a new business in California. If we applied for a L-1 Visa or an E2 Visa will having the EB5 already in progress be an issue?

As Canadians we can apply for the L-1 right at the border so there is no waiting time. With the E2 we will have to file in Toronto and there is approximately a 4 - 6 week wait for approvals.

Thank you.

Andrew Wilson

Your post is interesting because we have processed EB-5 matters for clients through programs in Seattle as well.

You raise some interesting questions with respect to wanting to come to the U.S. in non-immigrant status while your EB-5 paperwork is pending.

With respect to an L-1, there should be no conflict and no problem whatsoever in obtaining L-1 status while your EB-5 paperwork is pending. The L-1 category does allow for dual intent so it is no issue that you have permanent resident paperwork in the works.

In order to qualify for the L-1 you do need to keep the Canadian operations running while you are in the U.S. You cannot close down shop in Canada and focus only on business in the U.S. Do you have someone that can oversee things in Canada while you are in the U.S.? Do you intend to keep Canada running and operational?

For more info on the L-1 see:

<<snip>>

With respect to an E-2, there could be a dual intent problem because the E-2does not allow you to have both a temporary and permannet intent at the same time. This issue could be resolved though by finishing off your green card process through immigrant visa processing through the U.S. Consulate in Montreal rather than adjusting status in the U.S.

The E-2 requires a certain amount of investmnet in the business in the U.S., whereas that is not a primary issue for the L-1. The E-2, however, does not require that you maintain any operations in Canada.

The E-2 can take 1-3 months to obtain through the U.S. Consulate in Toronto or Vancouver, while the L-1 may be applied for and obtained the same day at a port of entry.

For more info on the E-2 see:

<snip>>

As you can see, the L-1 and E-2 have pros and cons depending on your goals and wishes.

Regards,

Andrew M. Wilson, Esq.
Serotte Reich Wilson, LLP
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Havnfun

Thank you for your very informative response. This is very helpful. Our original intent was not to keep our business in Canada operating but it certainly can be left operating until our EB-5 is approved.

It is my understanding from what I have read that for the L-1 the businesses do not need to be the same type of business just the same owners. Is that correct? We currently own a Real Estate/Property Management/Development firm here in Calgary and really want to get out of the business and into something new in California. Is there a minimum requirement for the amount of revenue the US business is generating at the time of the visa application?

Thank you.

Andrew Wilson

You are correct that the busines you operate in the U.S. does not need to be the same as what you operate in Canada. You could make widgets in Canada and operate a resturant in the U.S. Common ownership is the key.

Since you are opening up a new business in the U.S., it would fall under a new office L-1 scenario. You do not need to show any revenue generated from the new US business (it can be brand new when you apply), but you do need to show a business plan. The new office L-1 will be valid for one year, and in order to extend you will need to show business activity in the U.S. No set ampount of revenue needs to be shown, but must prove business activity. Revenue is usually the easiest and most persuasive evidence of activity, but it is not as though you need to turn profits right away.

Regards,

Andrew M. Wilson, Esq.
Serotte Reich Wilson, LLP
<<snip>>

Folinskyinla

Andrew:

Just a historical note. I recall the time when "dual intent" was a hot issue in the late '80's. It pays to recall that the incoming president of AILA was indicted over that issue in regards to an H-1 [no "b" back then] by a rouge USA in North Carolina. Former INS actually came to the attorney's defense by saying that, although INS may not agree with the attorney's position, it was a reasonable position and one still in the area of refinement.

As a result of this whole brouhaha, the 1990 Act amended 214(b) and added 214(h). As a result, the debate over "dual intent" pretty much went away.

However, I recall that "dual intent" was always pretty much a non-issue in the case of "E" visas. The visa has no "residence abroad" requirement or an express description of it being temporary. Also, it contemplated a pretty long, if not close to permanent stay in the US. Accordingly, the so-called "non-immigrant intent" in the sense of intent to return home was quite attenuated to the point of being almost non-existent.

Of course, this is from nearly two decades ago -- what is you experience in current practice inasmuch as I don't do E's anymore?

Andrew Wilson

I agree that in many cases dual intent is not enforced much and not much of an issue. While on the books, consulates do not seem to focus on that issue very often.

I still have, however, encountered cases and consulted with clients where the consulate did point to dual intent as basis for denying an E. There was an intesrting case not long ago of German nationals who had held E-2 status for 15 years (running a restaurant) and who were denied thier new E-2 visas because they expressed at their visa inyterview how much they loved the U.S. and would love to stay. I also came across a case of an individual here in the U.S. in a different non-immigrant status for many years applying for an E-2 and the consulate questioned their ties and intent to leave the U.S. after being in the country for so long.

While it is not commonly enforced, I think the concept is still out there enough that I advise clients that it could be an issue. It is not disimilar to dual intent with a TN. In most acses it is not much of an issue, but I have been referred cases from out west where TN holders were initially denied because they were married to a US citizen or because they had been in TN status for so long. (I thought the reasoning in those cases was wrong and we were able to get them approved)

I guess this was a long way of syaing I agree with you, but I still see the issue pop up every so often. Somewhat par for the course with inconsistent adjudications and application of the law sometimes.

Regards,

Andrew M. Wilson, Esq.
Serotte Reich Wilson, LLP
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Folinskyinla

Hi:

To others reading this list, Andrew and I are both members of AILA. What you have seen is an example of the discussions that go on all the time between immigration lawyers.

Fellow AILA attorneys have noted that I tend to take an historical approach to understanding and explaining the law. I majored in History as an undergraduate. One of the national officers of AILA has introduced me as "Mr. Institutional Memory." If I didn't like Bernie a lot, I'd kill him over that.

Bottom line moral -- Andrew is right in making sure any lawyer you may hire is a member of AILA -- it is kind of pricey as these things go, but it is often the only source of much information and friendly exchange. [I've spoken to many lawyers in other fields of law, and they have expressed jealousy over the collegiality within the Immigration Bar.].

p.s. It may be hard to find an AILA member from June 25 to 28, 2008 unless you happen to be in Vancouver, BC, Candada on those days.