Recently, the U.S. randomly decided to lower the E-2 visa validity from 60 months to 18 months for Danish citizens. The E-2 visa, one which is used by many entrepreneurs launching U.S. companies as well as existing companies to send employees to U.S. subsidiaries to work, is used worldwide, and is an extremely attractive option for many.
Why? Well for starters it is applied for and adjudicated at U.S. embassies and consulates directly (known by immigration attorneys as “consular posts”), which allows applicants to avoid the random and often unfair adjudicators at US Citizenship and Immigration Services (“USCIS”) who are tasked with trying to deny cases, and instead have their cases decided by consular officers whose job it is to help further trade and business between the U.S. and the country where they are based.
Second, unlike the L-1 visa, which requires the existence of a foreign parent company or subsidiary and for the person to be transferred to have work experience with that foreign branch, the E-2 is much more versatile. It can be used for brand new startups, allowing seasoned foreign entrepreneurs to launch brand new ventures, or completely unseasoned foreign nationals who want to open and run a franchise business. The E-2 essentially allows anyone with a passport from an E-2 treaty country (there are approximately 80) with some capital (or capital backing) to launch a US venture and get a visa to develop and direct the new enterprise.
The biggest limitation of this visa has always been that for people without passports from treaty countries, it was not accessible. This means that over half the world’s population, most prominently all the BRIICS countries (Brazil, Russian, India, Indonesia, China and South Africa), is not privy to this gem of a visa. But lately, a secondary (and not insignificant) tendency has created major headaches, increased costs and led some people to not pursue their American dream, encompassed in one word: “Reciprocity”.
In most contexts reciprocity means something positive akin to giving back or collaborating. In the context of immigration, it could easily be replaced by “Revenge”. One country changes the validity dates for visas for nationals from a specific country and the other country reduces its visa validity in return, or one country starts charging visa issuance fees when it didn’t before, and the other country “returns the favor” and does the same, or both, and the foreign entrepreneur or businessperson is left with a less attractive option. This trend continued based on an Executive Order signed into effect by President Trump, section 10 of Executive Order 13780, requiring the Department of State to review all non-immigrant visa reciprocity agreements to make sure they are truly reciprocal.
To illustrate, a few years ago the U.S. government cut the E-2 maximum validity period from 5 years with unlimited entries to 3 months with one entry. No, that is not a typo. Essentially, without pulling out of the treaty, the U.S. reduced the visa validity to such a short period that it rendered it useless. A few years the Bromance between President and Trump and French Prime Minister Nicolas Sarkozy was irreparably damaged when the U.S. suddenly reduced the max term from 60 months to 25. Now the formerly 60-month max period time for Danes has gone from 60 months to 18, and now companies and entrepreneurs have to really think about whether applying is worth it when they have to turn around and apply a year later to get a new visa. Is it worth the cost of setting up a company and trying to ramp it up in such a short period of time? A great question which begs another which the US government should have asked itself – What good comes from shortening max visa validity dates, when it turns into less overall investment in the U.S., investment that creates tons of U.S. jobs?? My answer: I have no idea.