Pathway to the U.S: The E-2 Visa for Investors and Entrepreneurs

Introduction

Are you an entrepreneur looking to start a business in the United States? If so, then you may be interested to learn about the E-2 treaty investor visa, a nonimmigrant visa type that allows individuals from certain countries to live and work in the United States based on their qualifying investment in a U.S. business. To be eligible for the E-2 visa, you must be a citizen of a country that has a treaty of commerce, navigation, or an international agreement  with the United States. 

For those who qualify, this visa presents the perfect opportunity to manage your business, while bringing your family members with you to the United States. The good news is that spouses of E-2 visa holders are entitled to work authorization making it a very desirable choice for families.  

Although the E-2 visa does not provide a direct pathway to permanent residency, there is no limit to the number of extensions an E-2 visa applicant can apply for, making it the perfect visa for those who want to start their businesses in the U.S. Additionally, investors can explore alternative options to self-petition for permanent residency later down the line such as the National Interest Waiver or EB-1A. 

We remind our readers that while this article provides valuable insights and generalized information about the E-2 visa, it does not constitute legal advice. For personalized assistance about your immigration needs, please consult an immigration attorney. If you want to speak with our lawyer, our customer care representative will happily arrange a call.

Eligibility and E-2 Visa Requirements: Are You Qualified?

To qualify for the E-2 visa, you must meet the following requirements: 

• Be a national of a country that maintains a treaty of commerce and navigation with the United States.
• You must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States, and
• You must be seeking to enter the United States solely to develop and direct the business in which you have made your investment. 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.

To learn more about the E2 visa requirements, please visit the USCIS webpage here. 

Nationality

One of the most important requirements of the E-2 visa is that the foreign investor must be a citizen of a country that has a treaty of commerce and navigation with the United States. To know if your country maintains such a treaty with the United States, please click here for the U.S. Department of State’s list of qualifying countries. If your country of nationality does not have such a treaty with the United States, you will not qualify for the E-2 visa. 

Furthermore, where the treaty investor is an individual, he or she must possess at least 50% of the ownership interests of the business to prove he or she will maintain operational control.

When an investor is an organization, nationals of the treaty country must own at least 50% of the ownership interests of the business. In corporate structures, immigration will look to the nationality of the owners of the stock. 

Investment and Lawful Source of Funds

Once you have met the nationality requirements, in order to qualify for E-2 you must have invested or be actively investing a substantial amount of money or capital into your business in the United States. While “substantial” is not defined by immigration law, the amount invested must be “substantial” in relation to the total cost of establishing a new business, or in relation to the total purchase price of an existing business. Other factors that determine “substantiality” are whether the investment is sufficient to operate the business and ensure its successful development overtime. 

Once you have determined what is a “substantial” amount that should be invested in your business, you must be prepared to provide documentation tracing the complete source of your investment funds to prove that they were obtained from a lawful source. Additionally, you must prove that the capital being invested is under your possession and control. 

While investment capital can originate from various sources (gifts, savings, employment, sale of property etc.), it is important to thoroughly document the complete source of the funds to the investor’s personal or business bank accounts to establish that they were obtained lawfully, and that you have control over the funds.  

Finally, once you have made the investment into your U.S. business you must prove that the capital has been irrevocably committed to the business by placing the capital at risk of loss. This is done by documenting the operational and business expenses you have made to prepare the business to begin operations. This may involve purchasing inventory, hiring employees, opening an office or storefront, etc. 

Intention to Develop and Direct the Enterprise

As an E-2 visa applicant, you must be coming to the U.S. to develop and direct the U.S. business by taking an active role in its management. This is shown by maintaining ownership of at least 50% of its ownership interests. 

What does it mean to develop and direct the business?

Developing and directing the business requires the investor to take an active role as follows:

• Managing the day-to-day operations of the business
• Making or being involved in significant decisions
• Directing activities within the enterprise in a leading role (such as Chief Executive Officer)

The entrepreneur cannot take on the duties of a subordinate employee, nor maintain a passive role in the business. This is prohibited by the E-2 visa regulations. 

Non-immigrant Intent

The E-2 visa is a non-immigrant visa meaning that it is issued for a temporary period of time to allow the foreign investor to manage and direct the U.S. business. As a result, the investor must understand the temporary nature of the visa and attest that they maintain the intention to depart at the conclusion of their authorized period of stay in the U.S. Nonimmigrant intent is shown by signing a declaration of non-immigrant intent and by providing proof of strong ties to your home country. 

Please note that while the E2 is a temporary visa, there is no limit to the number of extensions an E-2 visa investor can apply for. 

A Step-by-Step Guide to Applying for the E-2 Visa

As you begin the E-2 visa process, it is important to understand the procedural and documentary requirements to ensure its success. 

Please note that while this article provides information about the E-2 visa process, this should not be considered legal advice. If you want to speak with our lawyer, our customer care representative will happily arrange a call.

Necessary Documents 

While preparing for the E-2 visa, it is best to consult your immigration lawyer to understand the criteria and how you can meet them. 

Please be aware that the E-2 visa application process varies depending on whether you will apply for a change of status application while in the United States on a valid visa type, or at a U.S. Consulate in your home country.

As a general matter, these are the steps that are involved in applying for the E-2 visa at a U.S. Consulate overseas: 

Please be aware that you must review your Consulate’s specific E-2 visa procedures and instructions before applying, since the procedures and submission requirements vary by Consulate.

• Complete Form DS-160 Online Nonimmigrant Visa Application
• Complete Form DS-156E Nonimmigrant Treaty Investor Application
• Provide a passport style photograph 
• Provide proof of paying the E-2 visa fee
• Provide a copy of your valid password that is valid six months beyond your intended period of stay in the U.S.
• Prepare a detailed and comprehensive business plan explaining how your business will be successful
• Provide documentary evidence of the company’s incorporation documents, business registration documents, and shares/stock certificates
• Provide documentary evidence of the investment in the U.S. business
• Provide documentary evidence of the lawful source of your investment funds 
• Provide documentary evidence that the investment funds are at risk of loss 
• Provide documentary evidence that that the business is real and operating 
• Provide documentary evidence of marginality (payroll records, employee W2s, corporate tax returns, corporate financial statements, etc.)
• Statement of Intent to Depart
• If your dependents will accompany you, they must each complete a separate Form DS-160 and provide copies of their biographical documents and civil documents (e.g. birth certificate for children, and marriage certificate for spouses)
• Proof of Strong Ties to your home country

To learn more about the E-2 application procedure for your Consulate, please click here. 

Consular Processing vs. Change of Status

To apply for the E-2 Visa as an investor or entrepreneur, you must determine whether you want to apply for a Change of Status (COS) within the U.S. (applying by mail with the U.S. Citizenship and Immigration Services) or through a U.S. consulate in your home country. 

Applicants should be aware that an E-2 visa stamp in your passport can only be obtained by applying for the E-2 visa at the U.S. consulate in your home country. 

However, those who are already lawfully in the United States on another visa type (such as B-1 visa holder) can choose to apply for a “Change of Status” application by mail with the U.S. Citizenship and Immigration Services (USCIS) to request a change of status to E-2 for a two-year period. 

The benefit of a change of status is that the investor can obtain E-2 status while remaining in the U.S., however the drawback is that the investor CANNOT receive an E-2 visa stamp in his passport until he or she applies for the E-2 visa at the U.S. Consulate in their home country. 

Essentially, the change of status application simply provides the investor with a new I-94 granting them duration of stay in E-2 visa status for a continuous 2-year period. 

If the investor departs the United States, his E-2 change of status will become void and he will need to apply for an E-2 visa at the Consulate. 

Consular applicants should also be aware that every Consulate has their own E-2 visa application procedures, as well as different processing times. In general, you must apply for your E-2 visa at the U.S. Consulate in your home country or the country where you reside. 

Otherwise you will need to receive permission from another Consulate overseas that will allow you to apply there as a third country-national. Not every Consulate accepts such applications, so you must prepare ahead of time to determine where you wish to apply. 

Filing a Change of Status Petition with USCIS

In cases where the applicant is applying for a change of status, the applicant must apply for the I-129 Petition Form for a Non-immigrant Worker by mail with the U.S. Citizenship and Immigration Services (USCIS) to request a status change to E-2. 

Key Benefits of the E-2 Visa for Investors and Entrepreneurs

As an investor and entrepreneur looking into the E-2 visa, there are various benefits and opportunities to consider. Some of these benefits include: 

No Set Investment Amount

While you are required to show a “substantial” investment in an E2 business, there is no required amount specified in the law. For businesses with low overhead or a lower operational cost, this may be an added bonus which may not require a high investment amount. It is important to discuss your business with an immigration attorney to determine what will be a “substantial” investment for your business. 

Family Benefits

As an E-2 visa holder, your family can accompany you to live in the United States by applying for an E-2 visa as your dependents.Your spouse and unmarried children under the age of 21 are eligible for such visas. Additionally, spouses of E-2 investors are eligible to receive work authorization, making this a very attractive option for families. 

Indefinite Renewals

Unlike other visa options, there is no limit to the number of extensions an E-2 visa investor can apply for. Therefore, investors can apply for countless E-2 extensions, so long as they continue to maintain a non-immigrant intent, continue to manage their businesses, and provide benefits to the U.S. economy by hiring local workers. 

Conclusion

In conclusion, E-2 visas are a perfect match for entrepreneurs looking to enter the United States to manage and develop their businesses. Not only does the E-2 visa allow citizens of a treaty country to work for their businesses, but it also allows them to grow and operate on U.S. soil. As you look into various visa options, consider the E-2 visa to grow your business venture in the United States. 

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