Foreign investors investing in the United States are being stymied by a U.S. immigration border policy preventing them from looking after their businesses in the country

FREMONT, CA: Foreign investors wishing to invest in the United States are currently being hampered by a US immigration border policy that prevents them from managing their operations in the country. The regulation is particularly unpleasant to Canadian investors. Still, it also poses an issue for foreign investors who are not visa-exempt, i.e., those from countries where applicants must apply for a B-1/B-2 visitor's visa to enter the United States. US Customs and Border Protection (USCBP) might quickly amend the applicable rule with a policy directive.

The Covid-19 is mostly to blame for the situation. Foreign investor interviews for E-2 treaty investor visas take an abnormal amount of time to schedule under the USMCA, previously the NAFTA free trade deal. Indeed, in the past, consular officers could not predict how long it would take to schedule E-2 visa interviews. Foreign investors had no choice except to come to the United States somehow until their E-2 visas were ultimately granted. While asking for a change of status from visitor to E-2 status within the United States is an option, the Consul General at the Toronto Consulate recently encouraged U.S. attorneys to avoid it, signalling that such petitions are likely to be denied. Because E-2 visas are generally processed by U.S. Consulates abroad, U.S. officials considered changing from business traveller to E-2 status inside the United States as gaming the system. As a result, the only reasonable option has been to enter the United States as a business traveller.

The main hitch is that E-2 investors are only allowed to stay in the United States as visitors for a certain amount of time. The current border regulation provides for a maximum of six months of stay. Indeed, business visitors who have already been physically present in the United States for six months in any given year are denied admittance.