Hi all..

I have a question that is 2 fold and fairly complex, ive been unable to find definitive answers to this online at both government sources (IRS and US Immigration) and legal forums.

The nature of my question is as follows;

I am in the final stages of preparing an E2 investor visa application. I have been preparing this myself largely, with the aid of an attorney in the initial stages to structure the application correctly and prepare all necessary legal documentation, which is now complete, the application is about to be submitted in the coming week or 2, however there is 1 issue that has me a little apprehensive.

The enterprise in question is owned by myself, a non US citizen who is a non resident alien. I set the company up 4 years ago during a visit to the US and have been using the business bank accounts to deposit funds paid by international and domestic (US) clients for software services.

I have never been based in the US and have been through legal consultations within the 4 years of operations on tax declarations that have drawn the conclusion that as a non-resident alien, who has no physical presence and has not passed the substantial presence test (183 days per year) and performs no work on US soil (services are performed from abroad) the company (a sole proprietorship) has no tax liability (state or federal) in the US.

This position is stated within multiple online sources, most noticeably at the IRS official website ( http://www.irs.gov/Individuals/Inter...urce-of-Income ) which clearly states revenue is taxable for services based on the location services are performed.

Now my question is this. Assuming this is the correct position, that the company (and myself) have no existing tax obligation for the past 4 years of revenue, would there be any risk of declaring this 4 years of revenue as as investment in the E-Visa treaty investor category as investment into the development of the companies core software products (intangible property) as the revenue has been used to develop the companies core software product assets, which are fully (100%) owned and copyrighted by the company which is now applying for the visa?. The sum is not huge, but there are documented active software license sales of approximately $300,000 with the complete paper trail (contracts, deposit records, bank statements etc) to back up my case that this is to be treated as investment toward the enterprise. The funds obtain from these license sales were re-invested to develop the core products.

What im concerned about is that the visa application section within the overseas embassy where i will be applying may not be familiar with such a (tax) situation and the fact i have a pre-existing US company which is run online from abroad (by a non resident alien, non US citizen) may result in the visa processing officer(s) requesting for proof of tax returns, when in fact non are available as the company has no tax obligation.

An important related issue here is i have deposited working capital into the company bank account, to the sum of $60,000 to prove sufficient funds to cover initial and start up costs. I'm concerned that these funds may be at risk if the visa processing offers suspect for any (incorrect) reasons that the company has a back tax obligation.

To sum this up is a short question, it is as follows. "Can i claim the previous 4 years of software license sales as investment into the company and is there a risk to the working capital that has been deposited into the business account in any shape or form?"

Any advice would be much appreciated.