One must generally observe three rules regarding business ownership for an E visa.
- At least 50% ownership of the business–because the company must have the nationality of the owner. So, for a company to have, say, Italian nationality, a person with an Italian passport who is not a U.S. permanent resident or U.S. citizen, must have at least 50% ownership of the U.S. business. (Note, employees must also have the nationality of the entity and be executive, supervisory or render essential skills.)
- He or she must be able to effectively direct, develop and control the business: At 50% ownership, you can get into a situation where, you can conceivably be blocked from implementing your ideas and projects, etc. In such a situation, it could be thought that you are unable to direct and develop the business because your partner could always say “no to your ideas and initiatives”. In that situation, there needs to be a way to get around the other person or other owner’s ability to effect what is called “negative control.” You have to be able to get around the other owner’s negative control. For this reason, we sometimes advice the controlling person to own more than 50% of the business.
Usually that is something that is written into the bylaws, or constitutes is a separate agreement, where the foreign owner only has 50%. They are still able to develop and direct the business because he or she has in writing a clause or a whole contract that allows him or her to implement his or her ideas and policies.
- Generally, the owner has to prove when he or she picks up the visa, that he or she is capable of running a business of that nature; that is, that he or she has some experience in either that type of business (you should provide your resume) or has worked, say, as a manager of a similar type of business and will now be able to manage this type of business. That is, even though you put a million dollars into a restaurant, if you’ve spent your entire life as a philosophy professor, it is unclear that you will get an E-2 visa to run that restaurant.
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