Navigating the complexities of U.S. immigration can be a daunting task, especially for investors seeking E-2 visa approval. In this pursuit, one landmark case stands out as a beacon of hope for those looking to make a mark with a low investment. The Matter of Walsh and Pollard, a precedent decision by the Board of Immigration Appeals, has become synonymous with the potential for success even with a relatively modest investment. Let's delve into the specifics of this case (which was approved with an E-2 investment below US$10,000) and understand why it is considered a game-changer for E-2 visa applicants.
The Walsh/Pollard Case Unveiled
The crux of the Walsh/Pollard case revolves around a contractual arrangement between a foreign entity and a U.S. business. The foreign company pledged to provide specific engineering design services, services that the U.S. business lacked the capacity to perform. Here's why this case is a game-changer:
1. Project-Oriented Services: The design services in question were project-oriented and highly specialized. This set the stage for a unique scenario where the employees furnished by the foreign company were demonstrably qualified to provide the needed service.
2. Strategic Creation of a U.S. Subsidiary: To fulfill the contract and service their employees, the foreign business took a strategic step. They created a subsidiary in the U.S., and this subsidiary constituted their E-2 investment. This decision was instrumental in establishing a clear path for investors with low capital to meet E-2 visa requirements.
3. Specific Design Project Focus: The employees coming to the U.S. were not there to fill general employee vacancies but were on-site to fulfill specific responsibilities tied to the design project. This unique focus negated the argument of whether the design activities could have been performed elsewhere, either abroad or on the U.S. business's job site.
4. Low investment: for E-2 visas, the investment must be large enough to ensure the investor’s financial commitment to the success of the business, and also of a magnitude that, under the investor’s direction and development, will generate revenue and create jobs for U.S. workers. For the specific Walsh and Pollard case, the E-2 investment was below US$10,000!
The Significance for E-2 Visa Applicants
The Walsh/Pollard decision aligns with the Department's guidelines on E-2 visa classification, introducing prominent elements that can benefit investors:
1. Nature of the Business Matters: The case emphasizes that, when applying the substantiality test, the focus should be on the nature of the business. This means that sometimes, even a low investment amount might meet the requirement if it aligns with the unique needs of the business.
2. "Develop and Direct" Test Clarification: The "develop and direct" test applies solely to the investor(s), not individual employees. This clarification streamlines the evaluation process, especially for investors with a hands-on approach to their ventures.
3. Acceptance of "Essential Skills" Test: The Walsh/Pollard decision solidifies the acceptance of the "essential skills" test, providing a clear framework for investors seeking E-2 visa approval.
For investors eyeing an E-2 visa with a low investment, the Matter of Walsh and Pollard stands as a testament to the potential for success. By understanding the nuances of this landmark case, investors can strategically position themselves to meet E-2 visa requirements and embark on their entrepreneurial journey in the United States. The Walsh/Pollard case is not just a legal decision; it's a blueprint for E-2 visa success, especially for those with a vision, determination, and a strategic approach to their investments.
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The information provided in this blog is intended solely for informational purposes. While we strive to offer accurate and up-to-date content, it should not be considered legal advice. Immigration laws and regulations are subject to change, and individual circumstances can vary widely. For personalized guidance and legal advice regarding your specific immigration situation, we strongly recommend consulting with a qualified immigration attorney who can provide you with tailored assistance and ensure compliance with current laws and regulations.
Visa Business Plans is led by Marco Scanu, a certified coach from the University of Miami with a globally-based practice coaching Fortune 1000 company executives, entrepreneurs, as well as professionals in four different continents. Mr. Scanu advises clients on turnaround strategies and crisis management.
Mr. Scanu received a bachelor’s degree in Business Administration (Cum Laude) from the University of Florida and an MBA in Management from Bocconi University in Milan, Italy. Mr. Scanu was also a Visiting Scholar at Michigan State University under the prestigious H. Humphrey Fellowship (Fulbright program) with a focus on Entrepreneurship, Venture Capital, and high-growth enterprises.
At present, Mr. Scanu is the managing partner and CEO at Visa Business Plans, a Miami-based boutique consulting firm providing attorneys and investors with business planning services in the areas of U.S. and Canadian immigration, SBA loans, and others.
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