State Department blocks many foreign contractors from America

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In several countries, the State Department has barred foreign entrepreneurs from entering the United States on E visas, which are one of the few ways for foreign nationals to start a business in America. Unlike Canada, Australia and UK, no start-up visa exists under US law which allows temporary status and permanent residence after creating jobs at a new US-based company. The problems for E visa holders come as foreign direct investment in the United States has fallen in recent years.

What is an E visa? “Category E includes treaty traders, treaty investors, and certain non-immigrant employees of such persons (as well as their spouses and children) who come to the United States under a treaty of commerce and navigation between the United States. United States and their country of nationality “, according to United States Citizenship and Immigration Services. “Treaty traders (E-1 visas) engage in significant trade in goods, including (but not limited to) services and technology, primarily between the United States and their country of nationality. Conventional investors (E-2) run the operations of a company in which they have invested, or are actively investing, a substantial amount of money.

Over the past two years, the entry of E visa holders has dropped sharply, despite US treaty obligations. “The problem is that a number of US consulates have refused to rule on investor and contractor applications for Treaty E-2 investor visas from the start of the pandemic to the present day,” Klasko Immigration Law Partners H. Ronald Klasko said in an interview. “This is in violation of bilateral investment treaties between the United States and host countries around the world. This is very surprising and unprecedented given that visas are granted to foreign nationals who invest a substantial amount in an American company that will create jobs for American workers.

Action or inaction has created problems for foreign entrepreneurs. “With the consuls not reviewing applications, these businesses cannot open and operate and jobs cannot be created,” Klasko said. “The solution is not complicated: The visa office in Washington, DC must inform the American consulates that they do not have the discretion or the ability to refuse to accept or process E-2 visa applications . “

The treatment of E visa holders and EB-5 investors (fifth job-based preference) has happened alongside foreign direct investment in America, which is essential for job creation and growth. , have plunged. “Spending by foreign direct investors to acquire, establish or develop US businesses totaled $ 120.7 billion in 2020, down 45.4% from $ 221.2 billion in 2019,” according to the US Department of Commerce Bureau of Economic Analysis.

Between 2018 and 2020, foreign direct investment fell 61%, from $ 312 billion to $ 120.7 billion. On immigration, the problem isn’t just with E visas and the State Department, lawyers say. “Antagonism towards foreign investors in the United States is also manifested by USCIS. EB-5 petitions have the lowest priority and the longest processing times, ”according to Klasko. “The indicated processing times for EB-5 petitions are 44 to 77 months. It makes absolutely no sense if the country is trying to encourage foreign direct investment. The processing time for I-829 waiver requests for EB-5 green card holders is 38-63 months. The regulations state that these complaints must be tried within 90 days.

In many US consulates, the issuance of E visas has been halted or dropped dramatically in 2020 and 2021. “A number of consulates have stopped all or nearly all E visa arbitrations for more than 20 months, including Ankara, Bogota and Bridgetown, ”Tammy Fox-Isicoff said. of Rifkin & Fox-Isicoff in an interview. “There are about 10 more on this list. Nationals of these countries cannot renew E visas or obtain new E visas to manage their investments. Many fear their business will fail. Others accepted E visa applications but generally did not make an E appointment for interviews, such as in Panama and Paris.

Copies of the U.S. Consulate email responses I received from immigration attorneys confirm Fox-Isicoff’s assessment. An E visa applicant from Bogota received an email saying, “In response to your communication, we will inform you that unfortunately so far we cannot handle this type of visa. From the US Consulate in Istanbul: “Due to the global Covid-19 pandemic, only limited nonimmigrant visa services are offered. Currently, we do not accept E visa applications.

In Bogota, the State Department did not issue any E visas as of September 2021. In some places, such as Paris, Buenos Aires, Copenhagen, Istanbul, Madrid and Luxembourg, E visas have been issued, but down by about two-thirds or more from the third trimester. (July to September) of fiscal 2021 to the third quarter of fiscal 2019, according to an analysis by the National Foundation for American Policy. For other locations, including Frankfurt, Taipei, Bangkok, Ciudad Juarez and Tokyo, data shows that the number of E visas issued was similar in the third quarter of fiscal 2019 and fiscal 2021.

The State Department announced new advice on November 19, 2021, aimed at relaxing the policies put in place during the Covid-19 pandemic. The guidelines state, in part, that “embassies and consulates have broad discretion in determining how to prioritize visa appointments across the range of visa classes in the most secure manner possible, subject to conditions and local restrictions ”.

“The department recognizes that visas for work and tourism are the foundation of President Biden’s foreign policy for the middle class and that international visitors are essential to the U.S. economy and the travel and service industries,” he said. said a State Department official in the background. “We are aware that as routine visa processing is reintroduced at some embassies and consulates that have not been able to schedule appointments, applicants may face extended wait times for interviews. visa. We are committed to reducing those wait times as quickly and safely as possible, recognizing that visas for work and tourism play a vital role in the U.S. economy. Regular updates on estimated wait times for nonimmigrant visas (NIVs) are available at travel.state.gov. “

The policy to date has frustrated entrepreneurs and their lawyers. “Imagine opening a business before the pandemic, investing $ 250,000, hiring four workers and your consulate won’t accept an E application, so you can’t come here to run the business? Fox-Isicoff asked. “I never imagined that 20 months after my Colombian clients requested to renew their Es for the fourth or fifth time, their Es would still be pending. These foreign investors are really at their wit’s end.

Fox-Isicoff client, Frank (he requested that his last name not be used), owns an auto detailing business in Florida. He was living in the United States on an L visa but had to leave to maintain his legal immigrant status. Frank tried to come back with an E visa but to no avail. He and his family have lived in France during much of the pandemic and are awaiting a visa.

“No one in Miami understands that I can’t be there to oversee my investments,” Frank said in an interview. “This situation is costing me a lot of money. My next big strategic move is to find a bigger, better exposed location for my automotive business. Even though the research is done online, it turns out that in order to commit to a one-year lease at one location, most people have to go there, check it out, and bypass it. I lost a year on my business plan because of this. I have another business unit that I want to start — get a distributor license for my business — and it turns out that can’t be done when you’re overseas either. Finally, I do not have access to credit even though I have an excellent credit rating because I do not have a valid visa for my passport.

Frank said the situation also had a personal impact. “With my family, we have been forced to stay away from home for almost 10 months now, and nothing makes us think we are going back anytime soon,” he said. “Even though we try to stay positive, every day is a struggle. We are fortunate to have strong family and friends, so we might find places to stay overtime in France. Our children know of no other school system than that of the United States. Although our school was kind enough to accept our children online last September, they informed us that as of January 2022, they will no longer be able to keep our children online. It is a very stressful situation for parents and children. We feel excluded. It’s not like we’ve done anything wrong.

“This is clearly a repeal of our treaty obligations,” Fox-Isicoff said. “We might as well hang a sign on our front door saying foreign nationals are not welcome and keep your investment dollars at home.”


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