E-2 Treaty Investor Visas

E-2 Treaty Investor visas are available to persons who are entering the U.S. “solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital.” As a precondition to the availability of the E-2 visa, the home country of the business owners must have a treaty with the US that allows American businesses to operate in that home country. An additional requirement is that at least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the U.S. and the home country have a ratified bilateral investment treaty. A list of these E-2 eligible countries is set forth below. Employees of the enterprise who are working in management, executive or “essential” positions are eligible for the visa if: (1) the ownership breakdown meets this above test; AND (2) the employee is a national of the treaty country.

The main requirements for an E-2 visa are:

The investment of the enterprise must be active – not passive. This requirement means that the money which the enterprise invests must be used to produce a real commodity or service. For example, an investment in land would not be considered active, but if the investment were accompanied by submission of development plans to appropriate authorities and contracts for building, it would be considered an active investment. In order to protect the applicant in the event that the visa is denied, the INS and State Department allow the applicant to place the proposed investment in an “escrow account.” But if an escrow account is used, other evidence showing the investment will be active must be presented with the application. The investor must also manage the business and exercise a controlling interest in the business.

The investment must be substantial – not marginal. While the word “substantial” is not defined by any particular dollar amount, USCIS and the Department of State use one of two tests to see if this requirement is met. They require either that: (1) the amount invested be proportional to the total value of the business, or (2) that it be an amount considered necessary to establish a viable business in the field. Sometimes, USCIS and State Department use a sliding scale that they are allowed to reference in determining whether an investment is actually “substantial.” For example:

If the value of the business or the cost to start it is less than $500,000, a minimum 75% investment will be required.
If the value of the business or the cost to start the business is between $500,000 and $3 million, a minimum 50% investment will be required.
If the value of the business or the cost to start the business is over $3 million, a minimum 30% investment will be required.
In addition, the investment cannot be marginal. In this regard, the investment must generate more funds than just enough for the owner to make a living and, ideally, should even create jobs for U.S. workers.

The E-2 visa applicant must have “nonimmigrant intent”. This means that the applicant must intend to depart and leave the U.S. after their authorized period of stay is over. However, unlike other most other nonimmigrant visa categories, the applicant can meet this requirement by simply providing the consulate with a statement indicating that they have non-immigrant intent.

Unless the E-2 applicant is in the U.S. in another visa status and is seeking to change status to an E-2 visa, applications for E-2 visas are made directly to the consulate and not through USCIS. Each consulate has its own version of an E visa questionnaire form. In addition, most consulates require extensive documentation to support the E-2 application. The length of time for which the visa will be issued is determined by agreements between the U.S. and the treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-2 status. Thus, as long as all of the conditions of the E-2 visa are met, the visa is indefinitely renewable.

Spouses and children of E-2s are entitled to visa status as well. However, E-2 family members may not work in the United States, unless they qualify under some other category or regulation. Although E-2 family members are not subject to removal (ie. deportation) proceedings if they work without authorization, but they will be considered out of status and ineligible to change or adjust their visa status in the U.S. However, there are no restrictions on family members pursuing studies while in E-2 status.

The following countries have ratified investment treaties with the United States. Nationals of these countries can apply for E-2 visa status:

Albania
Argentina
Armenia
Australia
Austria
Armenia
Azerbaijan
Bahrain
Bangladesh
Belgium
Bolivia
Bosnia and Herzegovina
Bulgaria
Cameroon
Canada
Chile
China (Taiwan)
Colombia
The Congo
Costa Rica
Croatia
Croatia
France
Georgia
Germany
Grenada
Honduras
Iran
Ireland
Italy
Jamaica
Japan
Jordan
Kazakhstan
KosovoKorea (South)
KyrgyzstanLatvia

DOCUMENTS needed for E-2 Visa:

A detailed business plan which covers the nature and purpose of the E-2 business, the initial investment, the source of the investment funds, growth projections and employment projections. Property, Equipment or Real Estate costs
Asset Purchase and Sale Agreements
Mortgage or Loan documentation
Financial Statements
Articles of Incorportation (corporation) or Articles of Organization (LLC)
Invoices, Orders, or Contracts between E-2 company and customers/suppliers
Costs of inventory and materials
Deeds or lease agreements
Costs of employee wages
Costs of legal, professional and licensing fees

If you have questions about eligibility for E-2 classification contact South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.

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