The E-2 Treaty Investor Visa

What is the E-2 Visa for immigrant Investors?

Individuals who wish to invest a significant amount of capital in the United States may qualify for the E-2 visa.  The E-2 visa is a treaty investor visa, meaning that the foreign national must come from a qualifying treaty country.   There is no official minimum amount of capital or level of investment needed to qualify for E-2 status.  However,  the lower the investment the less likely one is to qualify. Essentially, the level of investment must be enough to justify the national’s or his/her employees’ presence in the U.S. Additionally, the investment must be made in an “operating business.”   It is also important that a substantial portion of the investment must have been made prior to applying for E-2 status.

 

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What are the eligibility requirements for an E-2 Investor Visa?

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

 

For more information on the specific requirements to obtain an E-2 visa for immigrant treaty investors, please visit our section here.

 

Which countries are eligible for an E-2 immigrant investor Visa?

E-2 visas may only be applied for by people or companies from countries that share commerce and navigation treaties with the U.S. For a list of the E-2 visa treaty countries, visit our section here.

Investors from qualifying countries may apply for an E-2 visa in order to 'Direct and Develop' their investment in the U.S. They may also apply for E-2 visas for key managerial and specialist employees who will need to work in the U.S. in order to manage the business. Unlike the L-1 visa, there is no requirement that E-2 employees have worked for the investor for at least one year in the last three. In addition, it is not necessary that the investor continue operations outside the U.S. while he or she or employees are in the U.S.

 

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What documentation is required for the E-2 visa?

E-2 visa registration applications must demonstrate the following:

  1. There has been and will continue to be a substantial capital investment in the U.S. There is no specific maximum amount of capital, but $40,000 is generally an absolute minimum and any investment below $100,000 would need a very strong evidence to support the application.
  2. The investment must entail some risk to the investor. In other words, the investment may not be all in the form of un-guaranteed credit. For example, there must at the very least be a long-term lease of an office in the U.S.
  3. The investor will control his/her investment. For these purposes, control is considered owning over 50% of the U.S. enterprise.
  4. The cash invested must not be marginal when it is compared to the total investment in the enterprise. Unless it is common to the industry to have higher amounts of 'leveraging' (such as in the property industry), 51% of the investment should be in the form of cash equity. Where there is debt that is secured against other assets of the investor, it is considered to be 'at risk' and may be considered as part of the equity invested by the investor.
  5. The enterprise is active or will be active in the future. In order to be 'Directing and Developing' the investment, the investor will require an enterprise that involves active management.
  6. U.S. workers are employed or will be employed in the future. While there is no minimum required number of U.S. employees, the treaties envisage more than just creating a job for the principal investor. That being said, the employment of a large numbers of U.S. citizens would help your application.
  7. The enterprise or its principal investor has a past history of successful trading.
  8. The 'investor' has sufficient acumen to direct and develop the investment enterprise.
  9. The principal investor and any other E-2 staff are able and willing to leave the U.S. upon termination of their E-2 status at the time that takes place.

 

Generally a resume and a supporting letter from the principal is all the evidence that is required to qualify as an E-2 executive or manager.

If the investment is being made in a start-up company, the amount invested needs to be large enough to start and operate the business. U.S. Immigration uses what is called an ‘Inverted Sliding Scale’ in order to determine if the investment is substantial in proportion to the total cost of the business venture.

If you need any assistance in applying for your E-2 visa, contact our U.S. immigration lawyers in Los Angeles now for a free consultation.

 

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Can I apply to change my status to E-2 Visa if I am already inside the United States?

If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file an application to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file a petition on the employee’s behalf.

 

How can I apply for an E-2 immigrant investor visa outside of the United States?

A request for E-2 classification may not be made on the petition of the person being filed for is physically outside the United States. Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad. Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant.

How to apply for an E-2 Visa at a U.S. Embassy abroad

Applicants need to apply at the U.S. Embassy that has jurisdiction over their place of permanent residence. An interview at the embassy is required for applicants between the ages of 14 and 79. Immigration law is complex and changing constantly.

If you would like expert legal counsel on your E-2 application or other immigration or visa needs, please call or email our legal experts at JCS Immigration and Visa. Located in Los Angeles, California we offer a free immigration consultation and can help you today.

 

Additional Documentation Needed to Apply for an E-2 Visa

In order to qualify for the E-2 visa, the applicant must establish that the enterprise in which they are investing meets the requirements of the law and complies with all of the requirements for the E visa. Special forms may be required for this process. Circumstances vary from one applicant to another, so the required documentation may change from case to case.

 

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I was denied my E-2 Visa. What can I do?

If a visa application is denied, an applicant may resubmit an application if there is new evidence to overcome whatever was the reason for the initial denial. If new evidence does not exist, then the embassy is not required to re-examine such cases. Contact us for a list of documents to support appealing a visa denial.

 

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How long can an E-2 visa holder stay in the United States?

Treaty investors and employees are allowed an initial stay of a maximum of 2 years. Extensions are granted in periods of up to two years and there is no limit to the number of extensions that can be granted. That being said, all E-2 nonimmigrants must be able to demonstrate that they intend to return to their home country upon the expiration of their E-2 status.

Generally, an E-2 nonimmigrant who travels outside of the U.S. will be granted an automatic 2 year period of readmission when re-entering the U.S. and therefore it is generally not necessary to file an application with USCIS.

 

Terms and Conditions of E-2 Status

An E-2 treaty investor or employee may only work in the capacity he or she was approved to do at the time the visa was granted. E-2 employees may also work for the treaty enterprise’s parent company or subsidiary if:

  • The relationship between the enterprise and the parent or subsidiary is established.
  • The subsidiary employment requires qualifying skills or a qualifying role of employment.
  • The terms and conditions of the employment have not changed other than the direct employer.

 

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If the underlying facts or terms of the E-2 status change, USCIS must approve the changes if they are substantive in nature. This means that the employer’s basic characteristics change and includes but is not limited to a merger, acquisition, or event that changes the relationship between the employer and the employee. In order to notify USCIS of such a change, a new application with filing fee must be submitted. At the time of this new submission, the employee or employer may also request an extension of the visa.

If the change is not “substantive” in nature, a new application is not necessary.

If a strike or other labor dispute takes place and it leads to a work stoppage, Canadian or Mexican treaty investor’s employees may not be able to obtain E-2 status.

To learn more about the E-2 visa application process, or to read the full review, please call or email our experienced Los Angeles immigration attorneys today!

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