The E-2 Treaty Investor Visa is available for nationals of a country with which the U.S. has established a treaty of commerce and navigation, and allows for the admission of individuals who invest a substantial amount of capital in a U.S. business. Special classifications of employees of eligible foreign nationals or organizations may also qualify for issuance of an E-2 visa. Careful planning and attention to governing rules and regulations are a must when it comes to applying for an E-2 temporary business visa.
A current list of countries with which the U.S. maintains the qualifying treaty can be found at: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
Basic E-2 Treaty Investor Requirements
To establish eligibility for an E-2 visa, the investor must:
- Be a national of a country included in the list of treaty of commerce and navigation countries
- Taken steps to invest, or already have invested, an amount of capital deemed to be “substantial” and in a bona fide U.S. business, organization or enterprise
- Be seeking entry into the U.S. for the sole purpose of developing and directing the business being invested in, and by establishing a 50% or more ownership stake in the business or via operational control by way of a managerial role or the like.
Investment is defined as an investor’s act of placing capital with an at risk venture and with the goal of making a profit, and the investor must demonstrate that the funds were not collected, directly or indirectly by way of criminal activity. More details can be on these requirements can be found at 8 CFR 214.2(e)(12) (see https://www.law.cornell.edu/cfr/text/8/214.2 )
A BIG QUESTION: What is considered a “substantial amount of capital”?
Here is some guidance –
- Substantial as compared to the sum total of either acquiring an already operational business or in launching a new business,
- Enough to ensure the E-2 visa investor’s financial commitment to the business’ success
- Sufficient to indicate a likelihood the E-2 visa investor will successfully carry out their role in developing and directing the business at issue. In sum, the less the value of the business, the higher, in terms of percentage, the overall investment must be in order to qualify as “substantial”. The lower the value of the enterprise, the higher, proportionately, the investment must be to be deemed “substantial”.
ANOTHER BIG QUESTION: What is considered a “bona fide enterprise or business”?
A qualifying investment is one that involves a genuine, active and operational commercial enterprises which engages in the production or providing of goods or providing of services and for profit.
THE THIRD BIG QUESTION: What is considered a nonqualifying “marginal enterprise”?
The business that is the basis of the E-2 visa investment cannot be one that is considered a “marginal enterprise”. A “marginal enterprise” is one that does not have the current or future prospect of producing enough revenue to provide the E-2 visa investor and his/her family with even a minimal income. In evaluating an enterprise on this issue, authorities will require the investor to establish that their investment will generate the requisite income stream within 5 years of entry on their visa. More details on this requirements can be found at 8 CFR 214.2(e)(15). (see https://www.law.cornell.edu/cfr/text/8/214.2 )
Certain Employees of a Treaty Investor Company Are Eligible to Work in the U.S
For an employee of a treaty investor company to obtain an E-2 visa, he/she must:
- Have the same qualifying nationality of the primary treaty investor,
- Be considered an “employee” under applicable law,
- Be carrying out roles that are considered executive or supervisory in nature, or at least have some special qualifications.
Eligibility requirements for qualifying employees are further detailed in 8 CFR 214.2(e)(18) ( see https://www.law.cornell.edu/cfr/text/8/214.2 )
Period of Stay
Investor visa holders and their qualifying employees are generally granted a maximum, 2 year stay, upon each entry. For those not needing to depart the U.S. during their stay, a 2 year extension is available upon request. Such extension requests can be granted an unlimited number of times, although all E-2 visa holders must continue to have “nonimmigrant intent”, where they intend on departing the U.S. upon expiration or termination of their status.
For E-2 visa holders traveling abroad, they will generally be granted a two-year period of readmission upon their return to the U.S.
Family of E-2 Treaty Investors/Employees
The spouses and unmarried children under the age of 21 are eligible to accompany the principal E-2 visa holder to the U.S. Such family members need not be of the same qualifying nationality of the principal E-2 visa holder.
With the right business plan and the requisite capital invested, an investor visa applicant and their family will be eligible to enter the U.S. to establish and/or grown an existing business. The more detail when it comes to the nature of investment and outlook for the future an E-2 visa applicant presents the better their chances for success in gaining entry into the U.S. to conduct their business.
Additional information on this topic can be found at : https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visa-e.html