U.S. Immigration Law and the Pursuit of Happiness

Since its founding, the United States has welcomed immigrants who come to this country seeking happiness and a better life. As written by the Founding Fathers in the Declaration of Independence on July 4, 1776, “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Immigration to the United States hasn’t always been open and free. After the original settlers arrived in America, they began to treat new immigrants from Ireland, Asia, Italy, and Southern Europe as “others.” For example, The Chinese Exclusion Act, which prohibited Chinese laborers from immigrating to the United States, was law from 1882 to 1943. In addition, the United States barred “idiots” and “lunatics” and others whose politics were deemed too dangerous. As recently as 2017, then-Presidential candidate Donald Trump called for a total shutdown of Muslims entering the U.S., leading to a ban on Muslim immigration from certain countries via Executive Order following his election.

None of these measures, as well as myriad others throughout history, has stopped immigration to the United States. About one in four people living in the United States now is foreign born or the child of immigrants. There is something unique about America and this has to do with the “self-evident truth” that life, liberty, and pursuit of happiness are unalienable rights. Immigration itself is a huge investment fraught with serious risks, risks immigrants choose to take every single day. Immigration is inherently good for America, although members of opposing U.S. political parties may have differing opinions about current immigration policies and how best to implement them.

I am a firm believer in the American dream, and fortunately American immigration laws still open the doors to foreign nationals from most corners of the world. Sponsorship from a family member or an employer is usually required for a foreign national to work and live in the United States, although certain American immigration laws offer visa options for foreign nationals to travel and start a new life in America without the need for any sort of sponsorship. These visa options include the EB-2 National Interest Waiver, the EB-5 Investor Visa and E1 and E2 treaty trader visas. The E visas are limited to citizens of countries with which the U.S. has a trade treaty, but the EB-2 National Interest Waiver and EB-5 Investor Visa have no such limitations. In this article, I will discuss the three visa options available to foreign nationals that do not require any sort of sponsorship.

 1. EB-2 National Interest Waiver

The National Interest Waiver is a method of obtaining U.S. lawful permanent residence without the need for an employer as sponsor. Normally for someone to qualify for the EB-2 employment-based visa category, an employer must sponsor the foreign national by offering a permanent job and testing the labor market through a process called Labor Certification with the Department of Labor. But if the foreign national’s work is so important to America that there is no need to give priority to American workers, U.S. laws allow the U.S. Citizenship and Immigration Service to waive the requirements of employer sponsorship and labor certification. To qualify for an EB-2 National Interest Waiver, the foreign national must first meet the requirements of the EB-2 visa category: The foreign national must either hold an advanced degree or claim exceptional ability. In addition, the foreign national must satisfy the following :

a. The foreign national's proposed endeavor must have both substantial merit and national importance.

b. The foreign national is well positioned to advance the proposed endeavor.

c. Waiver of the job offer and labor certification requirements would be beneficial to the United States.

If the foreign national meets these three elements, then the United States Citizenship and Immigration Services may approve the National Interest Waiver as a matter of discretion.

2. EB-5

This U.S. immigration law classification has allowed hundreds of thousands of people from all over the world to start new lives in the U.S. and to live the American dream. Unlike the EB-2 National Interest Waiver which requires advanced education and focuses on personal skills and achievements, the EB-5 requires a hefty investment to qualify. Applicants for a green card through the EB-5 investment visa must:

• Invest a minimum amount in a U.S business, and

• Take an active role in that business

Currently, the minimum investment amount is $1,050,000, or $800,000 if the investment is in Targeted Employment Areas (ETAs). However, the number of green cards is limited to 10,000 per year, 3,000 of which are reserved for investors investing in rural areas or areas of high unemployment.

Although this category is only open to wealthy foreign nationals who are willing to invest a minimum amount of $800,000, it has allowed foreign nationals who don’t possess the personal qualifications that qualify them for an EB-2 National Interest Waiver to immigrate to, invest in and pursue happiness in the United States.

3. E Visas

The U.S. immigration laws do not limit the opportunity to work and live in America to high achievers and rich people. U.S. immigration laws have also opened the door for ordinary people and small business owners to live and earn their success in the U.S. through the investment E visas. To qualify for an E visa, the country of the foreign national must be a treaty country. There are 2 types of E Visas: E1 and E2.

a. E-1 Visa

The E-1 Visa allows a foreign national to enter and work inside the United States. To qualify for E-1, the foreign national trader must:

• be from a qualifying country

• work for a qualifying business

• be either a 50% (or greater) owner of that business

• carry on substantial trade, and

• be able to show that most of the company's trade is with the United States.

The term “substantial trade” refers to an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. (“E-1 Treaty Traders | USCIS”) There is no minimum requirement regarding the monetary value or volume of each transaction. "While monetary value of transactions is a relevant factor in considering substantiality, greater weight is given to more numerous exchanges of greater value." (“E-1 Treaty Traders | USCIS”) 

The E-1 Visa requires that most of the business trade is between the treaty country and the U.S. If the investor’s business does not qualify for E-1 classification because either the business does not engage in trade between the investor’s country and the U.S. or because the trade is not substantial, the foreign national can then consider the E-2 Visa classification.

b. E-2 Visa

The E-2 investor visa allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. To qualify for E-2 classification, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation.

• Have invested, or be in the process of investing, a substantial amount of capital in a legitimate United States enterprise; and (“E Visas (E-1, E-2, and E-3) for Temporary Workers | USCIS”)

• Be pursuing entry to the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device. (“E-2 Treaty Investors | USCIS”)

Immigration laws do not specify a minimum amount of capital that needs to be invested to qualify for an E-2 visa. However, the investment amount must be substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one and sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise. For a lower cost enterprise, the investment must be proportionately higher to be considered substantial.

The investment enterprise should not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise is not considered marginal even if it lacks the current capacity to generate such income if the enterprise will have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. (“E-2 Treaty Investors | USCIS”)

The E visa in both classifications offers fast and convenient options for nationals of treaty countries to invest and live in the U.S. Even though these visas are nonimmigrant visas and do not lead to permanent residency and citizenship, there is no limit on the number of times the visa can be renewed.

The U.S. economy represents hundreds of years of continuous creation of human potential and opportunity, and immigrants from all over the world play a crucial role in unleashing this potential, leading to the greatest ideas and inventions the world has ever seen. Immigrants have contributed to the success and prosperity of the American economy: Forty-four percent of companies on the 2022 Fortune 500 list were founded by immigrants and children of immigrants, and 56 Fortune 500 CEOs are immigrants themselves. Although America’s economy has fluctuated over the years, it will continue to grow and progress because America and its core values will always endure.

Bassel Abdallah