E-2 Treaty Investor
The E-2 visa allows foreign nationals who are citizens of “treaty countries” to live and work in the United States on the basis of an investment. The investment can vary in size and can be in an existing or newly established business. The foreign national would be admitted under E-2 status solely to develop and direct the operations of the enterprise in which he or she has invested. The E-2 visa is a great option for those who wish to operate their own business. The spouse of an E-2 treaty investor is granted employment authorization to work in the United States.
In order to qualify for the E-2 visa, the following requirements must be met.
The applicant must be a national of the E-2 Treaty Country.
The treaty investor must hold the nationality of a E-2 Treaty Country. A list of E-2 Treaty Countries can be found here.
The applicant must have invested or is actively in the process of investing.
Possession and Control of Funds or Assets: The E-2 treaty investor must be in possession of and have control over the capital invested or being invested. This includes demonstrating the ownership of the funds being invested which can be done through bank statements, transfer records, and other related documentation.
Lawful Source of Funds: The funds used for the investment must be derived lawful means. This means providing explanation and corroborative documentation on how the investment capital was obtained.
Risk of Investment: The E-2 treaty investor must be putting capital at risk. The nature of investment means to put capital at risk for the prospect of future financial gain. Should business conditions become unfavorable, that capital may be subject to partial or total loss. Therefore, the capital must be deployed to achieve a result not guaranteed and the capital contributed must be personal assets of the investor.
Irrevocable Commitment of Capital: The investment capital should be contributed to the business or used in furtherance of the business activities. Alternatively, funds may be placed in escrow with release contingent only upon the approval of the E-2 application.
The amount of investment is “substantial.”
There is no minimum dollar figure for determining whether an investment is substantial. What constitutes “substantial” is dependent on the nature of the business. The adjudicator may conduct the evaluation based on a proportionality test which compares the amount of capital invested to the cost of an established business or the cost of creating the new business. For example, a $50,000 investment in a service type of business that costs $30,000 to set up may qualify as a substantial investment. Whereas a $1,000,000 investment towards a manufacturing facility that requires millions of start-up capital might not be substantial.
The investment cannot be in a “marginal” business.
A “marginal” business is one that does not have the prospect of becoming anything more than a lifestyle business for the owners. For example, an investment of $100,000 to purchase a gas station that yields a net income of $50,000 per year may constitute an investment in a “marginal” business. On the other hand, a business is not marginal if it has the prospect of providing more than just a minimal living for the E-2 investor and his or her family. An important factor considered is the capacity of the business to provide job opportunities to U.S. workers. The prospect of the business to employ U.S. workers in the future would be weighed favorably.
The E-2 investment must be in a real and operating commercial enterprise.
The investment must be in a business that provides services or products for the purpose of earning a profit. It cannot be an idle investment such as acquiring undeveloped land for appreciation in value.
The E-2 treaty investor is in a position to develop and direct the E-2 enterprise.
This E-2 investor must have the discretionary authority to make key decisions about the operations of the business. Ownership of at least 50 percent of the E-2 enterprise is an important factor as it generally grants ultimate control over the business. Furthermore, the E-2 applicant should show he or she has the skills or knowledge to develop and direct the enterprise.
The investor intends to depart the United States when the E-2 status terminates.
The investor must affirm in a written document that he or she intends to depart the United States upon the termination of the E-2 status.
Dependent Family Members
Spouse and minor children of E-2 investors are granted E-2 derivative status. The spouse of E-2 treaty investors may obtain employment authorization to work in the United States.
If you are in the United States, you can submit the E petition with USCIS and request a change of status (from your current nonimmigrant status to E status). Usually the better option is to apply for the E visa at a U.S. consulate abroad. The consulate conducts independent review of the petition documents regardless of whether you already received an approval from USCIS. In a worst-case scenario, you run the risk of receiving an approved petition with USCIS but having it denied by the consulate. For this reason, it is generally recommended to apply for the E visa at a U.S. consulate abroad.