E-2 treaty investor visas may be obtained for someone who will make a substantial investment in the United States to establish, develop, or maintain a business. The applicant must be a manager or supervisor and must intend to leave when the visa expires. The E-2 visa lasts for two years but can be renewed. Spouses and children are eligible for E-2 status also if E-2 status is granted to the applicant.
The E-2 Visa is a treaty investor visa that allows foreign investors to invest in new or existing commercial enterprises and live in the U.S. The E-2 visa is a nonimmigrant visa, meaning the applicant must have the intent to leave the U.S. upon the expiration or termination of the visa. This visa is issued to nationals from countries that have entered into Commercial and Navigation Treaties with the U.S. Nationals from the countries listed on the Travel Department’s website [https://travel.state.gov/content/travel/en/us-visas/visa-information-resour…] are eligible to apply for the E-2 if they meet the other qualifications as well. The E-2 visa was designed for foreign nationals with active business interests in the U.S. This interest must require that the investor be present and actively participating in the operation of the commercial enterprise.
An E-2 visa is available to foreign investors who:
1. Are citizens of countries that have entered into a commerce and navigation treaty with the U.S.;
2. Have invested or are in the process of investing a substantial amount of capital into an existing or new commercial enterprise;
3. Come to the U.S. for the purpose of developing and directing the investment enterprise
To be considered a substantial investment so as to qualify for E-2 classification, the investment must be either substantial in relation to the cost of purchasing the existing enterprise or creating the new enterprise; enough money or capital to ensure that the investor is financially committed to the success of the enterprise; or enough money or capital to show that the investor will strive to succeed in developing or directing the enterprise. As such, it logically follows that enterprises that are lower in cost will require a proportionately higher investment than an enterprise that is higher in cost. Specifically, the regulations and case law suggest that if an enterprise is worth $100,000, an E-2 investor should provide 100 % of the investment, whereas a 10-15% investment into a multi-million-dollar enterprise may be sufficient to satisfy the substantial investment requirement.
Additionally, to qualify for E-2 classification, the investment enterprise cannot be marginal. An investment enterprise is considered marginal when it does not have the present or future capacity to generate more than minimal living income for the investor and his or her family. In analyzing future capacity, USCIS will look to the projected future capacity that should be realized within five years. As such, a five-year business plan should be included as evidence with any application for E-2 visas.
The funds being invested into the commercial enterprise must be considered “at risk.” This means that the investor should make investments that he or she may partially or totally lose should the commercial enterprise be unsuccessful. As such, the source of the funds may be personal property, an unsecured loan, or a loan for which the collateral is from the investor’s personal assets. Simply, the investor must be in a position where he or she will face loss should the enterprise fail, or gain should the enterprise succeed.
An E-2 visa holder may also have foreign employees come to the U.S. for the purpose of working with the commercial enterprise. However, the treaty investor may not bring just any employee. First and foremost, the employee must be the same nationality as the treaty investor. Additionally, the employees must serve in either an executive or supervisory capacity, or possess special qualifications and be considered an essential employee.
To qualify as an employee serving in an executive or supervisory capacity, the proffered position must be directly supervisory or executive. The duties of the proffered position must also grant the employee with ultimate control over the commercial enterprise’s overall operation or a major component of its operation.
In determining if an employee is essential, USCIS will consider the need for the employee; the employee’s degree or proven expertise in a particular area of operations; the uniqueness of the specific skills possessed by the employee; the function of the proffered job; the salary that the special expertise can command; and the availability of U.S. workers who possess the required skills. Although the employee’s skills do not need to be unique, they must be crucial to the success of the commercial enterprise.
E-2 visa holders may also bring dependents to the U.S. for the duration of their status. Qualifying family members are spouses and unmarried children under 21 years of age. These family members may receive a derivative E visa. A spouse of an E-2 visa holder is eligible to apply for work authorization. There are no restrictions on where a spouse may work. Although the qualifying children of an E-2 visa holder cannot apply for work authorization, they may attend school in the U.S., including college and higher education, without changing to F-1 status. Unlike the employees of the E-2 investor, qualifying family members do not need to be of a particular nationality.
An E-2 visa holder can travel freely in and out of the U.S. Family members can travel as well, however they may face issues if they are not traveling with the principal E-2 visa holder. E-2 visa holders can also legally work in the U.S. Another advantage to the E-2 visa is that a visa holder may remain in the U.S. for a potentially indefinite amount of time, provided extensions are properly filed and approved. Further, as explained above, an E-2 investor may hire qualified employees in E-2 status to work for the commercial enterprise. There is no limit to the number of qualified employees the investor may hire in E-2 status.
The disadvantages of the E-2 visa include the limits placed on who may qualify, the available work for the investor, and the duration of stay. E-2 visas are only available to nationals from countries that have entered into commerce and navigation treaties with the U.S. Although qualifying derivatives may have a nationality that would disqualify them from obtaining an E-2 visa, the principal investor must be a citizen of one of the countries that have entered into such treaties with the U.S. Additionally, E-2 treaty investors and their employees must work for the specific commercial enterprise that the visa is tied to. Lastly, the initial duration of stay for E-2 visas is a maximum of two years. If an investor needs to stay longer, he or she may extend the stay for a maximum of two additional years. Although there is no limit to the amount of times an investor may extend their status, if the investor has to stay in the U.S. for a long time, the process of extending may be more complicated.
Any substantive changes to the terms and conditions of an investor or employee’s E-2 status must be approved by USCIS. A substantive change is one that is fundamental to the employer’s basic characteristics. This includes the merger or acquisition of the commercial enterprise or any other major event that affects the E-2 visa holder’s relationship with the commercial enterprise. Should there be any substantive change, the E-2 investor must submit a Form I-129 to document the change and submit evidence that the commercial enterprise, investor, or employee still qualify for E-2 classification.
The processing time for an E-2 visa depends on where the petition is being processed. Applicants currently present in the U.S. should submit their applications and supporting documentation to USCIS. Applicants outside of the U.S. should submit their applications and supporting documentation at the closest U.S. consulate. Overall, adjudication of E-2 visas typically take around 45 business days.
A potential E-2 visa holder should submit the following documentation as evidence to support their petition:
A. Form DS-160
B. Form DS-156E
C. Valid passport and passport photos
D. Curriculum Vitae
E. Business formation documents (incorporation, share certificate, contracts, business licenses, receipts, lease)
F. Evidence of transfer of funds (bank records, wire transfers)
G. Evidence of source of funds (tax returns, bank records, property records, loan documents)
H. Evidence of business operations (marketing material, delivery of goods, financial statements, tax returns, payroll records)
I. Evidence of employment as a supervisor or executive
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Few areas of law impact the long-term future of individuals and businesses as much as immigration law. The attorneys at C.T. Lee & Associates understand this, which is why we carefully analyze every client’s needs before developing a strategy that is designed to achieve each client’s goals as effectively and cost-efficiently as possible. See below for our list of services within immigration.
BUSINESS AND EMPLOYMENT-BASED IMMIGRATION – L-1 VISAS – O-1 VISAS – H-1B VISAS – EB-1 EXTRAORDINARY ABILITY GREEN CARDS – EB-2 EXCEPTIONAL ABILITY GREEN CARDS – EB-3 SKILLED AND UNSKILLED GREEN CARDS – EB-5 INVESTOR/EMPLOYMENT CREATION VISA – E VISAS (TRADER, INVESTOR, SPECIALITY OCCUPATIONS) – FAMILY-BASED IMMIGRATION – GREEN CARDS – VISITORS AND STUDENTS – P-1 & P-4 VISAS – U VISA – SPECIAL IMMIGRANT JUVENILE STATUS
