House Judiciary Committee Votes to Approve Israel for E-2 Treaty Investor Visa Eligibility

In a voice vote on March 8, 2012, the House Judiciary Committee approved a bill that would permit qualifying Israeli nationals to apply for the nonimmigrant E-2 Treaty Investor visa, thus enabling those seeking to develop and direct the operations of an enterprise in the U.S. in which they have already invested, or for which they are in the process of investing a substantial amount of capital, to temporarily live and work in the U.S. in close proximity to their investments.

The bill, H.R. 3992, provides that Israel will be deemed a “foreign state” as defined in Section 101 (a)(15)(E) of the Immigration and Nationality Act, being a nation that has a treaty of commerce and navigation with the United States, and whose qualifying nationals would be deemed eligible to apply for the E-2 visa, on the express condition that the Israeli government provides qualifying U.S. nationals with a similar nonimmigrant visa status option. The Bill aims to welcome increased Israeli innovations and technologies to the U.S. while boosting the economy and creating U.S. jobs.

Rep. Howard Berman (D-CA), Ranking Member on the House Foreign Affairs Committee, introduced the bill known as H.R. 3992 to the House on February 9, 2012. At that time, it was co-sponsored by Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee, Rep. Zoe Lofgren (D-CA), Ranking Member of the Immigration Policy Subcommittee, and Rep. Ileana Ros-Lehtinen (R-FL), Chairman of the House Foreign Affairs Committee. The bill then proceeded to the House Judiciary Committee where it garnered additional sponsorship by several members from both parties and was ordered to be printed on March 8, 2012. It will next proceed to the House for a full vote.

Close to a year ago, on May 9, 2011, an identical companion bill was introduced in the Senate. This bill, S. 921, was introduced by Senator Charles Schumer (D-NY) with co-sponsorship by Senate Minority Whip Jon Kyl (R-AZ), and Senator Mark Kirk (R-IL). After being read twice in the Senate, it was referred to the Committee on the Judiciary where it has since remained. Given the broad bipartisan support for the legislation, however, progress may proceed more quickly if a favorable vote is achieved in the House.

Israeli nationals currently are eligible for E-1 status based on a Treaty of Friendship, Commerce, and Navigation between the United States and Israel that was signed in April of 1954. This status is entitled for individuals intending to go to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and Israel.

If passed, Israeli E-2 Treaty Investors will be issued to individuals intending to go to the United States to develop and direct the operations of an enterprise in which the national has invested or is actively in the process of investing a substantial amount of capital. Generally, in order to qualify for E-2 visa status (in addition to being a national of the qualifying foreign state), it must be demonstrated that the qualifying investment is “substantial and active.” This means that the investment must not be "marginal," i.e., not an investment that supports only the investor's immediate family, but rather one that creates jobs in the U.S., and it must constitute an investment in a real operating enterprise, i.e., not one that is speculative or idle. The principal applicant for the E-2 visa must be either an investor who will "develop and direct the investment," a manager or executive or a specially trained employee necessary for the development of the investment.

Like the currently available E-1 visa, the initial period of stay for the E category is one to two years, however, it can generally be indefinitely extended. E visa holders can be accompanied or joined by their spouses and unmarried children under 21 years of age, regardless of their nationality. Spouses of E visa holders may apply for employment authorization, and while children may not work, they can attend school.

If the law is passed, potentially qualifying Israeli nationals should seek the counsel of seasoned attorneys to assist them with both immigration and corporate strategic planning and preparation. Applying for an E visa often involves the preparation of a substantial amount of documentation regarding corporate relationships, investments and trade. Although each element appears to be simple in principle, when it comes to actually establishing each element in practice, the process is often quite complex. Moreover, the U.S. Department of State has developed a considerable number of rules that come into play with respect to each element.

Israel would be the 81st country on a list of countries that have been designated by the U.S. as “Treaty Countries” for the purposes of the E Visa category. The full list, along with important country-specific footnotes, can be viewed on the Department of State website.