E-2 Investor Visa
An E-2 Visa is for a foreign national who wishes to live in the U.S. in order to direct and develop a business in which they have either already invested or are in the process of investing. The business can be large, small, or anything in between and can be a great option for those who want to start and run a business in the U.S. Five excellent examples of business investments that work well for E-2 visa processing are Franchises, Consulting Practices, Restaurants, the Purchase of an Existing Business, and E-2 Visas for Multinational Corporations.
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Requirements & Eligibility
There are 6 key eligibility requirements for the E-2 Visa:
1.
You Must Be a National of a Treaty Country
The E-2 Investor Visa is only available to people with citizenship in a country with which the U.S. has a Treaty. There are currently 81 countries on the treaty list, including many in South and Central America, Mexico, Canada and Europe, as well as a more limited number in Africa, Asia and the Middle East. A complete list of the countries on the list can be found here. More information on E-2 countries can be found here.
NOTE: Eligibility is not based on country of birth. It is based on country of citizenship. So, for example, if you were born in a country with whom the U.S. does not have an investor treaty, such as Venezuela, but you have dual citizenship with Italy, you can satisfy the nationality requirement for E-2 purposes.
2.
You Must Have Invested or Be Actively in the Process of Investing in the Enterprise
This requirement is comprised of a showing of 3 important factors.
- Show Legitimate Possession and Control of the Funds or Capital Assets
You must invest funds or utilize capital assets that you have obtained by lawful means, including savings, gifts, inheritance, contest winnings, loans collateralized by your own personal assets, or other legitimate sources. Funds cannot be obtained directly or indirectly through criminal activity. There are various forms of evidence that will satisfy this requirement including tax returns, bank statements, investment accounts, and more. - All Funds Invested Must Be “At Risk” and Irrevocably Committed
All the assets invested must be personal assets subject to risk of loss – that you have some “skin in the game”. Loans are fine but they must be ones that are collateralized by your own personal assets or are unsecured. At-risk money includes credit card debt or other loans if those debts are not secured by business assets or in the name of a limited liability business. - You Must Be Close to Starting the Business
While you cannot work in the U.S. until the E-2 Visa is approved, you must be close to starting your business. The U.S. government wants to see that the investment is not speculative or unsubstantiated. That you have reached an irrevocable point to qualify, and are close to the start of actual business operations, not simply in the stage of signing contracts or scouting suitable locations and property.
3.
You Must Be in a Position to “Develop & Direct” the Business
You must be the one that is going to control, direct and run the business, and possess an appropriate skillset to convince the government that your business will be viable and successful. You must own at least 50% of the E-2 entity; otherwise, the government will presume that some other individuals have the controlling interest and dictate how the business is to be developed and directed.
4.
Your Investment Must Be Substantial
The U.S. government does not have a predetermined amount that they consider substantial. They look at the overall value of the business and the amount of funds and capital invested as a proportion to that overall business valuation. Some businesses such as a Consulting Firm or Import/Export Company may have a lower level of investment needed to start up and get operations to a point of viability. Whereas other businesses such as a Restaurant or Manufacturing Facility would require a much higher level of investment. The lower the investment dollar amount, the higher its percentage of the overall value must be; the higher the value of the overall business, the smaller the percentage of investment dollar amount can be.
As such, your qualifying investment could be as low as $50,000 or as high as in the millions of dollars, depending on the type of business activity in which the enterprise will engage. In practice, the sweet spot seems to be somewhere in the $150,000 to $250,000 range.
5.
Your Investment & Business Cannot Be Marginal
Your business must demonstrate that it will generate more than income to provide a minimal living just for yourself and your family – that the business has the present or future capacity to make a significant economic contribution. While the E-2 Visa does not require your business to employ some minimum number of U.S. workers, you need to document that the business will create employment or economic opportunities for U.S. workers, either directly or indirectly. Presenting a well-thought 1-3-5-year business plan that indicates growth over time in terms of revenues and employees is critical.
6.
You Must Intend to Return to Your Home Country After Expiration of the E-2 Status
In practice, this is not a difficult requirement to satisfy and entails providing a signed statement to the U.S. government that indicates you plan to return home once your E-2 status expires. Unlike many other visas, you do not have to show that you will maintain ties to your home country. For example, it is okay for you to sell your home and move all your household effects to the U.S. if that is what you desire.
Application Process
There are two ways you can obtain E-2 classification. One is to apply for the E-2 Visa at a U.S. Embassy or Consulate in your home country. Or, if you are in the U.S. in some other visa status, such as a B-1 visitor, you can apply for a change of status to E-2 with the U.S. immigration service (USCIS).
1.
Applying for an E-2 Visa While in the U.S. (Change of Status)
A Form I-129 Petition along with the E Supplement is filed with the USCIS. A significant amount of supporting documentation is submitted along with the basic immigration forms to prove that your case meets the E-2 rules and regulations.
Such documentation should include evidence of nationality of the E enterprise; evidence of investment; information on ownership of the E entity; job description for E visa applicant; basic information about the company, including a strong 5-year business plan; basic biographic information about the E visa applicant and his or her family; copies of biographic pages of passports of the E visa applicant and his or her family, including marriage and birth certificates; and evidence that the E visa applicant and his or her family is currently in the U.S. in lawful nonimmigrant status.
NOTE: An approval of your change of status to E-2 does not give you an E-2 visa. Those can only be issued by a U.S. Embassy or Consulate. When your status is changed to E-2, you are lawfully in the U.S. in that capacity and can remain here for the period of time listed on the approval notice. However, if you leave the U.S. to travel abroad to your home country or elsewhere, prior to your return to the U.S. you will need to obtain an E-2 visa from the U.S. Embassy or Consulate where you will present a fresh E-2 visa application as described below.
2.
Applying for an E-2 Visa at a Consulate (An E-2 Visa)
If you are outside of the U.S., you must file a DS-160 nonimmigrant visa application, along with the DS-156E supplement. Detailed instructions on the E-2 visa application process and the required supporting documentation are usually outlined on the website of the relevant Embassy or Consulate. The required documentation that you must provide is generally the same as the documentation mentioned above for a change of status.
E-2 visas are generally issued for between 2 to 5 years and may be used for multiple entries. Upon admission to the U.S. with an E-2 visa, the U.S. immigration inspector will admit you for a period of up to 2 years.
Practical Considerations
If you have been granted a change of status to E-2 and subsequently leave the U.S., before coming back to the U.S. you must obtain an E-2 visa at a U.S. consulate. Unlike other visa categories such as the H-1B or L-1A, this does NOT mean that you simply show the consulate your I-797 approval notice and the visa application is rather routinely processed and approved. Instead, you must reapply for the E-2 from scratch and submit all supporting documentation to the E Visa Officer as if the application were a new one being filed for the first time.
If you are in E-2 status due to a change in status, this will not speed up your consular adjudication or expedite your E-2 visa application at a consulate. In fact, many consulates believe that E-2 visa adjudications should exclusively be done at consulates and, as a result, completely discount any USCIS findings. There are cases where visas that were approved by USCIS were later denied when the applicant applied for or sought a renewal at a consulate.
Even though the standard for E-2 visas is the same worldwide, some consulates are easier than others to get E-2 visa approvals through. For example, even though there is no set amount of money that an investor must spend, some consulates will not approve E-2 visas unless over $100,000 is spent. For others the threshold amount is even higher. Also, most attorneys agree that USCIS applies the standards consistently (relatively) and some argue that USCIS approval is easier than consular approval.
For How Long is the E-2 Granted?
If processed as a change of status, E-2 status will generally be approved for up to 2 years. If processed at a consulate, the E-2 visa can be valid for up to 5 years, depending on the reciprocity agreement between the U.S. and the foreign country and the decision made by the E Visa Officer.
How are Family Members Treated?
E-2 spouses and children under the age of 21 years receive E-2 Derivative status. E-2 spouses are allowed to work in the U.S., but not E-2 children. E-2 principals and derivatives can attend school in the U.S.
Frequently Asked Questions (FAQs)
1.
Does an E-2 visa lead to a green card?
No. An E-2 visa is a non-immigrant visa and does NOT lead to a green card. However, it is often approved for a 5-year period and, as long as the business is still in operation, you can renew the visa indefinitely. If you qualify for another green card category, such as EB-5 or through a family member that is a U.S. citizen or permanent resident, you should consult an immigration attorney to explore the best way to apply for that green card. Doing so can be tricky as an E-2 investor must generally maintain a nonimmigrant intent.
2.
Do I have to hire a minimum number of U.S. employees in order to get an E-2 visa?
There is no required number of U.S. workers that have to be hired to work in the business. However, usually the business should employ at least some employees in the U.S. if doing so is reasonably necessary for the business to operate. If no workers are hired, the investment may be considered “marginal” as a business that is set up only to support the E-2 applicant and his/her family. You do not have to hire workers immediately, but your 5-year business plan should detail exactly when you plan to hire the employees.
3.
Is an E-2 visa the visa where I have to invest a minimum of $900,000 to $1.8 million and hire 10 employees?
No. The E-2 visa is often confused with an EB-5 visa. The EB-5 visa is a completely different immigrant (green card) visa. Unlike the EB-5 visa, an E-2 visa does not require a specific amount of investment and does not have a specific minimum number of employees that you must hire.
4.
Can I get an E-2 visa with a low amount of investment? Is there a minimum amount of investment?
There is no required minimum investment dollar amount. We have seen E-2 visas granted with an investment of as little as $50,000. It varies greatly by the type of business to be run and how much is reasonable to get such a business up and running in a viable way. In general, the sweet spot seems to be in the $150,000 to $250,000 range.
5.
Can I borrow money to start the business?
Yes. In general, borrowing money is fine for this visa as long as the business is not overly leveraged.
6.
Is there a particular type of business that I have to start or buy?
No. Any for-profit, active business type is fine. Franchises, restaurants, professional services, consumer services, and retail shops are all routinely granted E-2 status.
7.
Do I have to make a business plan to get an E-2 visa?
Yes. A strong, well thought out, and well-presented 1-3-5-year business plan is required, as the business plan is a key piece of evidence that immigration and consular officers consider when they review your E-2 visa petition.
8.
Does an investment in real estate qualify for an E-2 visa? Can I buy a home and get an E-2 visa?
No. The E-2 visa can be obtained by either purchasing an existing business or creating a new business in the United States, but the business must be an “active” business. This excludes passive investments such as real estate or owning stock. Your business must also make money and, as such, not-for-profit enterprises are excluded.
9.
How long does it take to get an E-2 visa?
An E-2 visa is a very document-intensive petition. In addition to a number of government forms, the visa requires the submission of a binder full of documentation that is often quite lengthy. Getting the E-2 packet to a point where it is ready to be presented to an immigration or consular officer can take several weeks. Once the documentation is filed, processing times vary between a few weeks and a few months, depending on which immigration office or U.S. consulate is reviewing the E-2 packet.
10.
Do I need a lawyer?
Yes. Like most U.S. immigration laws, the E-2 visa rules and regulations are complicated and you must demonstrate to immigration or consular officials that you have met each and every one of the legal elements. In addition, the documentation requirements for an E-2 visa are quite extensive, the supporting documents need to be well organized and presented, and a legal brief must be written demonstrating how your case satisfies all the E-2 requirements.
