The E-2 Visa
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What Is An E-2 Visa (The Investor Visa)?
Inspired in part by its capitalist system, a central purpose of the U.S.’ immigration system is to grant admission to foreign nationals who are anticipated to have a positive impact on the U.S. economy, society, and job market. For foreign investors, this can mean very good news! Specifically, for businesspeople looking to invest in, direct, and develop a bona fide enterprise in the United States, the E-2 visa classification (investor visa) can very well open the doors.
“Is it really that easy?” Well, sort of. As described on the USCIS website, a treaty investor looking for an E-2 visa (investor visa) must:
1) “Be a national of a country with which the United States maintains a treaty of commerce and navigation
E-2 Visa Requirement: Does My Country Of Citizenship Apply?
There are currently 30+ countries that have trade treaties with the United States. For an exhaustive list of countries that apply to the E-2 visa category (the E-2 treaty countries), see chart below or call our offices.
To qualify as a treaty investor/for an investor visa, you must be a legal citizen of one of the countries (the E-2 treaty countries) listed above—legal permanent resident status is unfortunately, not enough. That being said, while citizenship in one of these E-2 treaty countries is required, residence is not. What could this mean? You do not need to live/reside in one of the cited E-2 treaty countries to qualify. In other words, as long as you hold citizenship from one of the cited E-2 treaty countries, you could reside anywhere and remain eligible. Are you an Iranian citizen living in Germany? A Belgian living in Switzerland? That’s okay!
Nationality Of The E-2 Visa Enterprise
Businesspersons who hail from E-2 treaty countries may qualify for this type of nonimmigrant visa. The E-2 treaty country list is available from the U.S. Department of State. Listed countries are those that either have a treaty with the United States or qualify via legislation.
Essential E-2 visa employees of treaty investor enterprises must be the same nationality as the owner. For businesses that have more than one principal, the USCIS requires that it is at least 50% owned by persons in the United States who have the nationality of the land on the E-2 treaty country list. If the owners are abroad, the USCIS requires a showing that they could validly acquire E-2 status if they were to seek a nonimmigrant visa.
Nonimmigrant E-2 employees of bona fide treaty investor enterprises should either be in an executive or a supervisory position. If they are not, they may still meet the E-2 visa requirements if they are employees with special qualifications. The USCIS considers an executive or supervisory position as one that calls for someone to exert control over all or a large percentage of the operation.
If you have substantial, lawfully acquired capital to invest in a bona fide enterprise, or you work for someone who does, you might consider taking a look at the list of E-2 treaty countries made available by the U.S. Department of State. An E-2 visa lawyer may be able to provide you with advice on qualifying for this nonimmigrant authorization. Our attorneys have years of experience providing such advice regarding the E-2 and other visas, so give our offices a call now!
2) Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
E-2 Visa Requirement: What Is Considered An Investment For E-2 Visa Purposes?
The USCIS E-2 visa application process requires that a treaty investor demonstrate that they have significant money to invest in a bona fide enterprise in the United States. Moreover, the E-2 visa applicant must prove that the money was lawfully acquired in order to qualify for an E-2 visa (E-2 investor visa).
Because the E-2 visa minimum investment must be substantial, the E-2 visa minimum investment should have the following characteristics:
- Significant compared to the total cost of purchasing a business for sale or opening a new enterprise
- Sufficient to ensure the E-2 visa investor’s financial commitment to the fruitful operation of the business
- Of a magnitude that shows that the E-2 visa holder will successfully develop and direct the enterprise
Generally, the lower the cost of the enterprise, the higher the proportional investment (in terms of the E-2 minimum investment) should be to demonstrate that it is substantial. Even if the business meets the criteria for exhibiting a substantial investment (to show E-2 minimum investment), it still needs to be proven to be a bona fide enterprise.
The E-2 visa requirements mandate that a treaty investor’s bona fide enterprise possess the following attributes:
- Amount of money invested demonstrates a financial commitment to the enterprise
- Capital is subject to partial or total loss if the investment should fail
- Venture is, or will be, a real and active operation in the commercial marketplace that has the objective of generating a profit
When applying for an E-2 visa, you may have already invested in the bona fide enterprise, or you could be in the process of actively investing capital. If you plan to purchase an E-2 visa business for sale, the USCIS may need to see your executed agreement that specifically outlines the details of the E-2 visa business purchase, evidence of the valuation of the E-2 visa business enterprise, and the previous financials of the pre-existing business. An E-2 visa attorney may be able to assist you with providing the USCIS with all items on the E-2 visa requirements checklist. Our offices can help. Give us a call!
What Is A “Substantial Amount” For E-2 Visa Purposes?
There’s no E-2 minimum investment that treaty investors must invest. Instead, the general expectation is that capital invested be sufficient to ensure the enterprise’s successful operation. While there is no E-2 minimum investment for an E-2 visa to be approved, the field-wide consensus is that investment capital should total upwards of $100,000 to be considered “substantial.”
What Is Considered “Bona Fide” For E-2 Visa Purposes?
USCIS defines a bona fide enterprise as “a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. “ Put simply, USCIS will not accept an E-2 visa business plans/blueprints alone—the enterprise must be operational. The E-2 visa enterprise must also offer a tangible good or service.
Even if you come from a qualifying treaty country and have substantial, investable capital, your USCIS E-2 visa application could be denied if it fails to establish that the proposed or existing business is a bona fide E-2 visa enterprise. As such, an E-2 visa applicant should submit supplemental evidence that the enterprise meets E-2 visa requirements.
The USCIS E-2 visa standards require that the enterprise is a real, active, and operating commercial or entrepreneurial venture that produces goods or services for profit. To demonstrate that the investor has the requisite commitment to the enterprise, the E-2 visa applicant might provide USCIS with a detailed description of the activities of the business, as well as financial statements and business reports.
Other examples of evidence that may prove to USCIS that the proposed or existing E-2 visa enterprise qualifies as a bona fide venture include the following:
- Purchase or lease agreements or other real property documentation
- Organizational chart that delineates the enterprise’s hierarchy
- Audited balance sheets and statements of income and expenses
- Quarterly wage reports for employees
A knowledgeable E-2 visa attorney may be able to provide other suggestions for documentation that may meet the USCIS E-2 visa requirements for establishing a bona fide investment enterprise. However, this prerequisite is just one of many on the E-2 visa requirements checklist. Our seasoned attorneys can help you navigate this difficult terrain, so give our offices a call to find out more.
3) Be seeking to enter 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.
- The applicant must be coming to work in the U.S. for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the country of origin
- In the case of an employee of a treaty investor, special rules apply
Call our offices for more info!
E-2 Visa Requirement: What Is Considered Solely Coming To Develop And Direct An E-2 Visa Enterprise?
Another E-2 visa requirement is that the applicant must show that they seek the nonimmigrant status for the sole purpose of developing and directing their treaty investor business. As such, according to the 9 FAM E-2 visa manual, an E-2 visa investor will need to demonstrate that they are in a position to develop and direct the E-2 bona fide enterprise. Business owners may also be able to have essential employees accompany them on an E-2 for this purpose.
Employees who are in a supervisory and executive role and need to come to the USA on an E-2 visa (E-2 investor visa) may meet the requirements if they are the same nationality as the business or its owners. If the owners of the E-2 visa business are currently abroad, the USCIS requires a showing that they could be classified as nonimmigrant treaty investors if they did make an E-2 visa application.
To qualify for an E-2 nonimmigrant visa as a supervisor or an executive of a bona fide enterprise, an essential employee will need to demonstrate that they are coming to the United States to develop and direct all, or a large percentage of, the operations of the bona fide enterprise. Specially qualified applicants might also meet the USCIS E-2 visa requirements.
If you would like to develop and direct your bona fide enterprise in the United States, an E-2 investor visa might be an appropriate choice for you. You might consider speaking with an E-2 visa lawyer about your aspirations for developing and directing a U.S. business with your substantial investment capital.
Our E-2 visa lawyers have experience and are prepared to help, so give our offices a call for an initial consult.
Additional E-2 Visa Requirements To Keep In Mind:
In addition to these 3 requirements for an E-2 visa (E-2 investor visa), the invested capital must be:
1) AT RISK:
- The E-2 investor must have already been committed/spent on the enterprise and the capital must be subject to loss (partial or total) if the investment fails
2) MORE THAN MARGINAL:
In order to determine if an E-2 business is marginal, USCIS looks to the following:
- The enterprise must be capable of generating significantly more income than that to simply provide a living for the investor and his or her family
- The enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins
- USCIS often tests the projected return on investment and the business’ capacity to hire U.S. workers as a measure of a business’ capacity to make a significant contribution to the U.S. economy
The USCIS requires that an E-2 visa application be for a bona fide venture in the USA, and not a marginal enterprise. As such, it can be important for you provide them with sufficient documentation to demonstrate that the enterprise is bona fide.
A marginal enterprise, as defined by the USCIS, is one that does not have the current or potential capacity to generate more than enough income for the treaty investor and their E-2 visa dependents. A persuasive E-2 visa application should demonstrate that the treaty investor’s income will be more than sufficient for at least five years from the date of the E-2 visa classification.
The USCIS could deny an E-2 visa application if it determines that the proposed or existing enterprise is derived from relatively small capital and is intended only to provide a living for the investor and their E-2 dependents. One method of fortifying an E-2 application is by submitting a detailed business plan or executive summary.
Additional documentation that may convince the USCIS that a treaty investor business is bona fide, rather than marginal, includes following:
- Tax documents evidencing the growth of the business
- Contracts for services and materials involving capital improvements
- Copies of monthly revolving debt payments showing amounts due and paid
An adept E-2 visa attorney may have other strategies for presenting a persuasive application to the USCIS so that USCIS finds that an enterprise is bona fide, rather than marginal.
How Long Is An E-2 Visa Valid For?
The E-2 visa is temporary and nonimmigrant in nature. Treaty investors and employees are allowed a maximum initial stay of two years, with extensions in increments of up to 2 years being available after this initial period. There is no limit to the number of extensions that may be granted, meaning a principal investor can renew an E-2 visa indefinitely, so long as he or he or she maintain an intention to depart when E-2 status expires or is terminated.
An E-2 visa holder is afforded nonimmigrant status to develop their bona fide enterprise in the USA using lawfully acquired, substantial capital. A treaty investor visa provides authorization to direct and develop the enterprise, which is generally valid for two years. As such, E-2 visa (E-2 investor visa) holders who are conducting business in the United States will remain as nonimmigrants unless they explore avenues to go from an E-2 visa to a green card.
The E-2 visa can last for two years. However, E-2 visa holders may receive renewals in increments of up to 24 months. Additionally, E-2 visa dependents may also join the E-2 visa holder in extending their nonimmigrant visa. There is no current limit to the number of times that an E-2 visa (E-2 investor visa) holder and their dependents can extend their nonimmigrant status. However, E-2 visa (E-2 investor) holders and dependents must maintain their intention to depart the USA when their status expires or is terminated.
An E-2 visa investor may only engage in the bona fide enterprise activity for which they were approved. An E-2 manager or essential employee, however, may be able to work for the parent company of the enterprise, or a subsidiary, under some circumstances. A well-informed E-2 visa attorney may provide further information on other requirements for maintaining nonimmigrant status with a related enterprise.
What About My Family? Is My Family Eligible For An E-2 Visa?
Spouses and unmarried children under 21 may accompany an E-2 treaty investor to the U.S as dependents. Spouses and children are generally granted the same period of stay as the treaty investor/employee. Their nationalities need not be the same as the treaty investor or employee—the only requirement is that the treaty investor be a citizen of an applicable treaty nation. Possibilities for spouses of E-2 workers to gain work authorization also exist by filing a particular form type.
Do all of these criteria have you confused? Don’t worry, our offices are prepared to help. With years of expertise representing treaty investors and employees under this E-2 classification, the Law Offices of Shawn S. Sedaghat is exceedingly well-equipped to represent you and tackle any issues that may arise.
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