E-2 Visa for Treaty Investors

What is the E-2 Treaty Investor Visa?

E-2 visa is a type of nonimmigrant visa that allows U.S. companies to bring their foreign nationals from a treaty country into the United States to invest in a new or existing business and provide them with an executive or essential role in running the company. E-2 visa provides foreign investors an opportunity to come to the United States on a temporary visa and work on their businesses. To qualify for an E-2 visa, the treaty investor must invest a substantial amount of capital in a bona fide enterprise and that the investment be at risk.

E-2 visa is a great option for early stage startup founders from a treaty country to grow and operate their startup in the U.S. There are two ways to acquire the E-2 visa. You may either apply for the E-2 visa at the consulate abroad in your home country, or change into E-2 visa status from another visa while in the United States. You will be required to submit evidence that you will be or have been operating a viable business, and that you have or will be investing a substantial amount of investment into the business using “at risk” capital. Additionally, you must prove that your business will support job creation in the United States.

What are the requirements for E-2 Visa?

In order to meet the basic requirements for E-2 visa, an E-2 investor must meet the following criteria described in depth in U.S. Department of State Foreign Affairs Manual (9 FAM 402.9):

• Treaty Country: A treaty of commerce and navigation exists between the United States and the applicant’s country of nationality(9 FAM 402.9-4(A));

• Treaty National: The E-2 Treaty Investor is an individual and/or business entity that possesses the nationality of the treaty country (9 FAM 402.9-4(B));

• Actual Investment: The E-2 Visa Applicant has invested or is in the process of investing (9 FAM 402.9-6(B));

• Real Commercial Entity: The E-2 Enterprise is a real and operating commercial entity (9 FAM 402.9-6(C));

• Substantial Investment: The E-2 Visa Applicant’s investment is substantial (9 FAM 402.9-6(D));

• Marginality: The investment is more than a marginal enterprise solely for earning a living (9 FAM 402.9-6(E));

• Executive / Directory Capacity: The E-2 Visa Applicant is in a position to develop and direct the enterprise (9 FAM 402.9-6(F));

• The E-2 Visa Applicant, if an employee, is destined to an executive/supervisory position or possess skills essential to the firm’s operations in the united States (9 FAM 402.9-6(B) and (C)); and

• The E-2 Visa Applicant intends to depart the United States when the E-2 status terminates (9 FAM 402.9-4(C)).

What Count as “Investment” for E-2 Visa?

An investment is any capital, asset, fund, tangible and intangible property, including intellectual property, that the investor has placed “at risk” in the commercial enterprise with the goal of generating profit. The term “at risk” means there is a chance of losing the capital if the investment fails.

What Amount of Investment is “Substantial” for E-2 Visa?

While U.S. immigration regulations do no impose a minimum amount of investment for E-2 visa purposes, the following guidance is helpful to determine whether your investment is “substantial” for E-2 visa purposes:

• Proportionality Test:

  • Is the investment amount proportional against the cost of running the business? For example, if you are investing $100k into a donut shop business, and the cost of getting the donut business started is exactly $100k, then your investment will pay for 100% of the business, therefore your investment would be “substantial” in the proportional sense.

  • There is no requirement for minimum investment amount for E-2 visa.

• Is the amount invested sufficient to ensure that the enterprise is likely to succeed?

What is the “Marginality” Requirement for E-2 visa?

We see a common issue facing small E-2 businesses: the marginality requirement. An E-2 visa business must have the capacity to generate enough income to provide more than minimal means of living for the treaty investor and his or her family members. In other words, the E-2 visa enterprise must be more than just a mom-and-pop shop. Ideally, and E-2 visa enterprise should create job opportunities to support multiple U.S. employees, or have a significant positive economic impact that benefit the U.S. economy, not just for the visa applicant and their family. This capacity to support more employees and generate revenue should be realized within five years. If you business has little to no revenue, then a well drafted business plan with five year financial forecast can help demonstrate the marginality requirement.

How Do I Apply for the E-2 Visa?

Filing Procedures:

• Inside the U.S.

  • The applicant will submit an application for a treaty investor visa by applying for a change of status from another type of visa to the E2.

• Outside the U.S.

  • The applicant will apply for an E-2 visa in front of a U.S. consulate office abroad.

Required Documents:

Contact our office for a list of required documents for your E2 Visa.

How Long is the E-2 Visa Valid For?

E2 visas are typically valid for a period of 5 years. Typically, E2 status is usually granted in 2 year increments of valid periods of stay. This period of stay can be renewed in 2 year increments as long as the E2 visa is maintained legally. There are no limits to how many times you can renew the E2 visa as long as you continue to work on the E2 enterprise and the enterprise meets certain requirements.

Can I Travel Freely in and out of the United States while on E-2 Visa?

Yes. E-2 Visa holders can travel freely in/out of the U.S.

Can Foreign Employees and my Spouse and Kids Also Apply for E-2 Visa with me?

Yes, essential employees as well as the spouse and children may apply for E-2 dependent visa.

Can My Spouse Work?

Yes, Spouse of an E-2 visa holder may work for the Investor’s business or work with another employer. The spouse may also start his or her own business. Until recently, the E-2 visa spouse had to apply for an EAD in order to commence working. However, a recent USCIS policy memo indicated that an E-2 visa spouse can in fact work automatically upon approval of the E-2 visa.

Advantages to Working with Xu Law Group:

The E-2 Visa is unique compared to other types of visas in that you have to pitch your business to the immigration officers and convince them your business will succeed. A successful E-2 visa petition calls on both the legal craftsmanship and the business acumen of your attorney. At Xu Law Group, our attorneys possess the unique intersection of skillsets in both immigration and business laws. Our firm’s philosophy is to help immigrant startup founders succeed in the U.S. We are ready to help make your entrepreneurial dream a reality.