The E-2 Treaty Investor Visa

Employment-Based Immigration

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Like the E-1 treaty trader visa, the E-2 visa is a nonimmigrant visa that is restricted to citizens of countries with which the US maintains a treaty of commerce and navigation (about 80 countries at last count). Instead of focusing on international trade as the E-1 treaty trader visa does, the E-2 treaty investor visa focuses on the process of investing into the United States from one of the treaty countries, so that new jobs may be created.

“Investing, as defined by the US Citizenship and Immigration Services (USCIS), means “the…placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit.” Two types of investment justify immigration for E-2 visa purposes — the purchase of an existing business or the establishment of a new business.

Who Qualifies for an E-2 Visa?

Two types of applicants may qualify for an E-2 visa–(i) treaty investors (principal investors) and (ii) executive, the management, or essential skills employees of the same nationality as the treaty investors.

In E-2 immigration status, an applicant may qualify to enter and work in the US based on a qualifying investment. In many cases, employees are sent to the US in place of the actual investors. In all cases, the applicant must be coming to direct the investment enterprise or to develop and direct enterprise operations.

Period of Stay, Visa Extensions and Permanent Residence

The original E-2 visa is issued with a period of validity of five years. As long as the business continues and you still qualify for the visa, you may extend it every two years as many times as you please. The E-2 is also considered a “dual intent” visa, which means that it is OK to apply for permanent residence while holding E-2 status. Applying for permanent residence while in E-2 status, however, can get complex because you will be required to abandon certain rights.

Nationality

To qualify for an E-2 visa, you must be a citizen of one of the 80 or so countries that qualify as treaty countries. You must be of the nationality of one of the treaty countries and carry that nation’s passport — it is not enough to be a permanent resident. You do not need to be residing in your country of citizenship at the time you file your application, however. If you are an employee rather than a treaty investor, you must be from the same country as the treaty investors.

Minimum Investment Amount

There is no formal minimum investment amount that applies to the E-2 visa. The minimum investment varies by industry, by the investor, economic conditions, immigration policy, and even which US embassy or consulate you submit your application to. Although it generally takes a substantial amount of capital to win approval, in some cases the minimum investment can be less than $100,000. The bigger the investment, however, the greater the chance of approval.

Proving That Your Business is “Bona Fide”

Your investment must be “bona fide.” Of course, this requires the legal establishment of a company, but that is not all. A shell company would not be considered “bona fide”, for example, even if it was legally established. It will also fail the “bona fide” test if US immigration authorities believe that it was established for the sole purpose of allowing the applicant to enter the United States.

The E-2 Business Plan

You must submit a business plan with your E-2 visa application. The business plan should be prepared with great care because its quality is likely to determine whether your application is approved or denied. Your business plan needs to cover the following topics:

  • Well-documented financial projections show that your enterprise is likely to generate enough income to support you and your family, meet your payroll obligations, and create new jobs.
  • Proof of your access to sufficient investment funds, including documentation showing that the source of this money is legitimate;
  • Details about the investments that have been put into your business and proof that your business will be in operation from the day you arrive in the US;
  • Evidence that you own at least 50 percent of the business, or that nationals of the treaty country own at least 50 percent of the business, and that you are a citizen of the treaty country;
  • Your operational strategy in the country;
  • Your marketing strategy in the country; and
  • Your skills, experience and qualifications, and evidence showing that your business is related to these skills, experience, and qualifications;

This is not an exhaustive list. The exact contents of an ideal E-2 business plan will vary from investor to investor and from industry to industry.

Application Process

The application process for the E-2 visa is reasonably straightforward. You must:

  • Submit Form DS 160;
  • Create an embassy account to deposit money into;
  • Pay the appropriate nonrefundable application fee (currently $205);,
  • Make an appointment with the ASC for fingerprinting and photographic (your biometric information).
  • Submit the entire application package, complete with Form DS-160 plus certain supporting documents and information, to the US embassy or consulate abroad where you are submitting your application.

Once the US Department of State receives your application through a US embassy or consulate located abroad, it will process your application, schedule an interview with you at the embassy or consulate (which is not always necessary), interview you, and return your passport to you by courier with your visa stamped inside (assuming it was approved).

Note that you may apply for a change of status to E-2 processing within the US if you meet certain qualifications.

Your Family

Your spouse and your unmarried children under 21 may accompany you to the United States regardless of their nationality (in other words, they do not have to be citizens of a treaty country). Approval is not automatic — each member of your family must separately apply for an E-2 visa and file Form DS-160 based on your investment. Marriage and birth certificates will be required to establish your relationship with your family members.

Frequently Asked Questions (FAQs)

How much is the visa issuance fee?

In the US, the total for the various fees is $460. If you apply from outside the US, the total is $750.

Is it better to start a new business or purchase an existing business?

That all depends on the details of your investment. In most cases, however, investors prefer to purchase an existing business, since an existing business has clients, a reputation, and a business track record that should mitigate a lot of the risk associated with the investment. An existing business is also likely to prove to be a simpler process, and it should provide you with far more information about your investment than a startup will.

Some companies don’t need to hire employees. Will I need to hire employees to remain eligible for E-2 status?

Although there is no absolute requirement that you hire employees to remain eligible for E-2 status, it is a practical necessity. To remain eligible, you must convince US immigration authorities that the investment in question actually benefits the US economy. The best way of doing this is usually to provide them with enough information to show them that the investment creates jobs for American workers.

Can my spouse and children work in the United States while in E-2 status?

Your spouse can work in the United States by applying for and receiving approval of an Employment Authorization Document (EAD). Your children, however, cannot work in the United States without securing another type of visa that allows employment.

Can my children attend school in the United States on an E-2 visa?

Yes, they can attend public or private high schools as well as institutes of higher education, at least until they turn 21. No special permission is required — there is no need, for example, to wait for the student visa process to be completed.

Will my children have to leave the US if they turn 21 or get married while in E-2 status?

Although your children’s E-2 status cannot be extended after they turn 21 or get married, they may be able to remain in the US in another visa status — F-1 student status, for example, perhaps leading to H-1B status and eventually permanent residence.

How can I visit the United States to investigate a potential E-2 investment I am interested in?

Correspond with the candidates regarding your potential investment, and keep your correspondence. Normally, you can apply for a 90-day visa waiver or a 180-day B1/B2 visa. Either way, you will be permitted to investigate potential businesses and even sign an asset purchase agreement. Temporary restrictions could be imposed, however, due to the COVID-19 crisis.

How should I handle the E-2 visa interview?

E-2 visa interviews are normally fairly straightforward. You might be asked, for example, why you are applying for an E-2 visa, or you may be asked to provide further detail about some of the contents of your enterprise business plan. You might also be asked questions about your personal life. Whatever you do, don’t lie, because if you get caught lying it can be used as an excuse to deny your visa.

You, your spouse, and any of your children over 14 years old must attend the interview. You can bring along your younger children if you wish to.

How well do my English language skills need to be to have a successful E-2 visa interview?

Since E-2 visa interviews are normally conducted in English, your English needs to be passable. It is important that you demonstrate enough proficiency in English to make your E-2 application believable — and that means the better your English is, the better your chances of approval. You can indeed be turned down for lack of English language ability.

Can I apply for E-2 status from inside the US?

Yes, you can, subject to certain conditions. If you are applying for a change of status to E-2 status within the US, you will need to submit Form I-129 and provide certain other documentation.

Can I travel abroad and return on an E-2 visa?

Yes, you can travel as often as you please on an E-2 visa, There is not even a restriction on the total amount of time that you may spend outside the country.

Can I appeal a denial of my E-2 visa application?

No, you cannot. It is possible, however, to apply again. If you applied for an adjustment of status with the USCIS inside the US, you can file a motion to reconsider or a motion to reopen. This will result in your application being reviewed by the USCIS, the same authority that denied it the first time.

Frequently Asked Questions (FAQs)

The EB-5 Alternative

The EB-5 visa, which leads to a green card, is a popular alternative to the E-2 nonimmigrant visa. To obtain an EB-5 visa, you must:

  • Invest at least $1.8 million in a new or existing U.S. business that will create at least 10 full-time jobs for US workers, or
  • Invest $900,000 in a new or existing U.S. business located in a rural area with high unemployment, or
  • Invest in a US government-designated Immigrant investor Regional Center. Your investment must benefit the U.S. economy.

If you apply within the US, the USCIS will need to process Form I-485 to adjust your status to permanent resident.

A Look at the Future

The US immigration law system, being highly sensitive to the political winds, is in a state of constant flux. In recent years the system has been particularly unstable. It is important to keep ahead of the changes happening in immigration law, particularly with respect to E-2 status, so that nothing catches you by surprise.

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