What is the E-2 visa?
The E-2 treaty investor visa is a nonimmigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States to develop and direct an enterprise that they have invested in. It also allows for executive/supervisory and essential employees of a company owned by a treaty national to come to the United States to fulfill their duties.
Do I qualify for an E-2 Visa?
There are some basic requirements that must be fulfilled as follows:
- A treaty exists between the United States and the foreign country.
- The 50%+ owner of the business (whether it’s an individual or business) must possess the nationality of the treaty country.
- The potential E-2 applicant must be coming to develop and direct the business if they own 50%+ of the business; serving the business in a capacity that is supervisory or executive in nature, or working in a position that involves skills essential to the operation of the business.
- Nationals of the treaty country must own at least 50 percent of the stock of the United States Company i.e. the firm you intend to invest in or work for must be majority-owned by individuals of the treaty country’s nationality.
- Investments made with the company must be “at risk”, which means that it is possible for the investors to lose their investments.
- The investment made is “substantial”.
- The investment made is more than a marginal one. In other words, the investment/business should have the ability to support more than the investor and his/her immediate family.
- The funds to be invested are in the investor’s possession and control.
- The United States business is real and operating.
- The potential E-2 applicant must intend to depart at the conclusion of his/her duties in the United States The E-2 visa is a non-immigrant visa and will not allow an individual to stay in the United States permanently.
What does Nationality refer to?
The treaty investor must possess the nationality of the treaty country. The nationality of the individual is determined by the authorities of the country in which the alien claims nationality. Generally speaking, this is the country that the individual is a citizen of. The nationality of a business is determined by the nationality of the individual owners of that business.
How do I know if my country is a treaty country?
For a list of treaty countries and various treaties with them, please see E-2 visa treaty countries.
What is the 50 Percent Rule?
This refers to the requirement that nationals of the treaty country must own at least 50 percent of the business in question. This can be determined by looking at the ownership of the company’s shares or stock. If the business being invested in is owned by another company, at least 50% of the parent company must be owned by nationals of the treaty country.
What qualifies as a ‘substantial investment’?
A substantial amount of capital for E-2 visa purposes constitutes an amount that is:
- Substantial in a proportional sense, i.e. substantial in relation to the total cost of either purchasing or creating a new company.
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise.
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
- No set dollar figure constitutes a minimum amount of investment to be considered “substantial” for E-2 visa purposes. A consular official will decide if your investment meets the requirements.
What does it mean that the funds must be at risk?
This means that the funds invested must be subject to partial or total loss of investment. The funds need to be actually invested/spent or in the process of being invested/spent, not merely sitting in a bank account. In other words, they need to have been irrevocably committed. However, a reasonable amount of money held in a business operating account for operations may be included as part of the investment.
What other financial transactions qualify as “Investments”?
The following list contains examples of financial transactions that would qualify as “investments”:
- Monthly lease payments or payments for renting equipment can be calculated as part of the investment.
- The amount spent for the purchase of equipment and for inventory on hand may be calculated in the investment total. The value of goods or equipment transferred to the United States (such as factory machinery shipped to the United States to start or enlarge a plant) may be considered an investment. The alien, however, must demonstrate that the goods or machinery will be put, or are being put, to use in an ongoing commercial enterprise. The applicant must establish that the purchased goods or equipment are for investment and not personal purposes.
- Rights to intangible or intellectual property may also be considered capital assets to the extent to which their value can reasonably be determined. Where no market value is available for a copyright or patent, the value of current publishing or manufacturing contracts generated by the asset may be used. If none exist, the opinions of experts in the particular field in question may be submitted for consideration and acceptance.
- Monies contributed to start-up funds or otherwise invested in a business are also considered investments. However, these funds must be irrevocably committed.
- Funds committed to an escrow account that will deposit the investment contingent only on the approval of an E visa are considered irrevocably committed.
What are the benefits of applying for an E-2 visa?
On an E-2 visa, you may:
- Work legally in the company that is the investment vehicle in the US
- Travel freely in and out of the US
- Stay on a prolonged basis with two-year extensions
- Bring your dependents or accompanying relatives
- Your spouse may also work while in the US
How long can I stay in the United States on an E-2 visa?
You may stay on a prolonged basis with unlimited five-year visa renewals or two-year status extensions as long as you maintain E-2 qualifications. There is no limit on the number of extensions you may apply for.
Can I renew my E-2 visa stamp in my passport while in the US?
No, you can only renew a passport visa stamp at a United States Embassy/Consulate. United States Embassies/Consulates are only located outside of the United States.
Are there any travel restrictions on an E-2 investor visa?
No, there are no travel restrictions on E-2 visas. You may travel as many times as required before the expiry of your E-2 visa. USCIS also does not impose any limit on the time you spend abroad.
Can I bring my dependents on an E-2 visa?
Yes, you may bring your spouse and unmarried children under the age of 21 years to stay along with you. They must apply for dependent visas and may stay in the United States through the duration of their authorized stay as long as they maintain valid E-2 status.
Can my dependents work in the E status?
Your spouse may be authorized to work by applying for employment authorization after entering the United States in the E status. Your children may not seek employment authorization, but they can attend school without having to change to another status.
What are some of the documents or supporting materials typically required for an E-2 visa application?
- Documents establishing your nationality
- Documents that establish the nationality of your company
- Evidence of investment in the US, such as signed contracts, actual purchases, etc. (not just wire transfers to a United States account)
- Financial and tax-related documents, such as tax returns, balance sheets, profit and loss statements, etc.
- Stock certificates, articles of incorporation, secretary of state certificates, minutes of the board of directors’ meetings showing who the officers are, and the distribution of capital
- Business plan
- Documentation establishing the source of the investment
- Documents showing the income of your company and the number of United States Citizens and Legal Permanent residents it employs or plans to employ
- Evidence that your company is a “real operating commercial enterprise”
- Resume and other qualification items, like degrees, transcripts, and certificates, if the individual is coming as an essential employee or in a supervisory/executive capacity
Where should I file my E-2 visa application?
Even though you can technically file an E-2 change of status application with USCIS if you’re in the United States maintaining lawful status, we almost always recommend that clients file the application directly with the United States Embassy/Consulate having jurisdiction over the applicant’s foreign residence.
Unlike many other nonimmigrant work visa status, such as the H-1B visa, the L-1 visa, or the O-1 visa, an E-2 application doesn’t need to be first approved by USCIS. We recommend applying at a United States Embassy/Consulate abroad for numerous reasons, which we’re happy to discuss with potential clients.
What is the processing time for E2 visas?
The processing time for E-2 visas is generally between three and six weeks from the filing of the application, however, it may take longer in some consular posts. This may vary depending upon the workload in the United States Consulate you apply at.
What if I don’t live in New York City?
Don’t live in New York City? No problem! We take great pride in offering the same stellar level of service to individuals whether they are located across the street, across the country, or across the globe. Whether we meet in person, over the phone, or using the internet, our strong communication will be an asset to your case.
How much will an E-2 Visa Petition Cost?
Give us a call and we will be happy to discuss our fees with you. Rest easy, Lightman Law Firm takes great pride in offering the highest level of service at an affordable FLAT rate, and we will never pressure you to work with us.
