Visa Lawyer Blog
In this blog post we highlight the best features of E-2 Treaty Investor Visa program, for individuals seeking to live and work in the United States for a temporary period of time.
First let’s discuss what the E-2 visa is. The E-2 visa is a non-immigrant visa type, which means that it is a temporary visa option for individuals who do not wish to immigrate to the United States, but rather are interested in remaining in the United States for a limited period of time.
Secondly, the E-2 visa is a treaty investor visa. This means that in order to qualify for this visa type you must be a national of a country with which the United States maintains a treaty of commerce and navigation. This visa type allows a national of a treaty country to apply for admission to the United States under the E-2 visa category for the purpose of investing a substantial amount of capital in a United States business.
Currently, 89 countries maintain a treaty of commerce and navigation with the United States. Israel and New Zealand are the most recent countries to enter into a treaty commerce and navigation with the United States, allowing nationals of these countries to participate in the E-2 visa program. For a complete list of the countries with which the U.S. maintains a treaty of commerce and navigation, please click here.
The most frequently asked question when it comes to the E-2 visa is, how much money must I invest in order to qualify for this visa type?
The amount of money that must be invested depends on the nature of the business’ operations. USCIS defines the amount of capital to be invested as “a substantial amount of capital” interpreted as:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
Thirdly, to qualify for the E-2 visa the investment must be in a bona fide business enterprise that is real, active, and operating and is producing either services or goods for profit. Passive investments are not allowed.
Not only must the investment be in a real, active, and operating business, but the enterprise must show the capability of being able to generate more than enough income to provide for the treaty investor and his or her family
A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. The business must generate enough money to stimulate the United States economy and create jobs for American workers. As part of the application, the investor must prove that the enterprise has the capacity to generate income within five years of the date that the treaty investor’s E-2 classification begins. This is proven by showing a comprehensive business plan, and other documents such as the investor’s track record for success and plan of action.
Passive investments are not allowed. In order to qualify for the E-2 visa the treaty investor must develop and direct the business showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
In applying for the E-2 visa the investor must place his capital including funds and/or assets, at risk with the objective of generating profit. This means that the E-2 investor must be willing to take a risk to partial or total loss if the investment fails. The amount of risk the investor will undertake will depend largely on the nature of the business’s operations and the amount of capital typically required to sustain the business’s operations.
Moreover, the investor must be prepared to show the source of the funds for the investment, in order to prove that the funds did not come from criminal activity. For example, if the funds are coming from the applicant’s earnings from employment, or sale of real estate, the investor must show documentary evidence tracing the earnings to employment or the sale of real estate.
How long is the E-2 visa granted for?
Treaty investors are granted a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. The good thing about the E-2 visa is that there is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted., but all E-2 nonimmigrants, must maintain an intention to depart the United States when their status expires or is terminated.
Can an E-2 investor bring his family to live in the US?
Yes. Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. The nationalities of dependents need not be the same as the treaty investor. Family members may seek E-2 nonimmigrant classification as dependents. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-2 spouse may work.
Who is the best fit for the E-2 visa?
Investors who are interested in living and working in the United States temporarily, with no intention of immigrating, are the best candidates for the E-2 visa. The best aspect of the E-2 visa is that the investor and his or her family members can extend their status in the United States for as long as the business is active in the United States. Moreover, this is a good visa for entrepreneurs who are interested in being involved in the day to day operations of their business and who are committed to taking on managerial or operational control of the company.
This may not be the best visa type for individuals who are looking for a permanent option to live and work in the United States. It may also not be the best visa for those who do not want to take on such a hands on role in the investment. Individuals interested in a more passive investment and permanent option of living and working in the United States may be interesting in EB-5 green card through investment.
To discuss which visa is right for you please contact us for a consultation.