How the E-2 Investor Visa Can Fast-Track Your Family’s Relocation to the U.S.

Many successful entrepreneurs and investors who come to the United States on E-2 nonimmigrant visas eventually seek permanent resident status for their families. This desire for long-term stability is natural, especially when children’s education and family roots become increasingly important.

While the E-2 nonimmigrant visa is an excellent entry point for business investment in the U.S., it is a temporary visa type that does not provide a direct pathway for permanent residency. However, E-2 visa holders can explore other immigration pathways to transition from temporary status to permanent residency. 

These pathways often involve sponsorship by a U.S. employer, or qualifying for a self-petition that does not require employment sponsorship, such as the EB-5 Immigrant Investor Visa, the EB-2 National Interest Waiver for individuals seeking a waiver of the labor certification requirement, or the EB-1A  for aliens of extraordinary ability. Others may also have the opportunity to immigrate based on a qualifying family relationship, such as marriage to a U.S. Citizen. 

While these options require additional planning and resources, they can help secure a stable future for families in the U.S.

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 with 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.

What Is the E-2 Treaty Investor Visa, and Who Can Apply?

The E2 treaty investor visa is a nonimmigrant visa type for foreign investors seeking to establish business operations in the United States. This non-immigrant visa category offers unique advantages, while establishing limitations that investors must carefully consider.

 To be eligible for the E-2 visa, you must satisfy these essential criteria:

• Hold citizenship from a nation that has established a treaty of commerce and navigation with the United States.
• 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
• 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.

To learn more about the E-2 visa requirements, please consult the USCIS webpage here.

Nationality

A fundamental requirement for the E-2 visa is citizenship from a country that has a treaty of commerce and navigation with the United States. To check whether your country qualifies, refer to the U.S. Department of State’s list of treaty nations.

To be eligible for the E-2 visa, you must be a citizen of one of these treaty countries.

Individual treaty investors must own at least 50% of the business to demonstrate operational control. 

If the principal investor is not an individual, it must be an enterprise or organization that is at least 50% owned by persons who have the nationality of the treaty country. In corporate structures, the nationality of the stock owners is considered.

Investment and Lawful Source of Funds

After meeting nationality requirements, E-2 qualification requires you to invest a substantial amount of capital in your U.S. business venture. While immigration law doesn’t specify a fixed amount qualifying as “substantial,” the investment must be significant relative to either the total establishment costs for a new business or the complete purchase price of an existing enterprise.

Determining “substantiality” also considers whether the investment amount is sufficient for business operations to commence and ensures the venture’s long-term success and development.

After determining what constitutes a “substantial” investment for your business venture, you must demonstrate the lawful source of funds for your investment. This requires showing comprehensive documentation tracing the complete origin of your investment funds. The investor must show that they have lawful possession and control of the invested capital. 

Investment funds can come from multiple legitimate sources, including gifts, personal savings, employment income, proceeds from property sales, etc. However, it’s crucial to maintain thorough documentation tracking these funds from their source to your personal or business bank accounts. 

Once you’ve invested in your U.S. enterprise, you must demonstrate that the capital has been irrevocably committed to the business and placed at risk of loss. This commitment is evidenced through documentation of operational and business expenditures in preparation for launching operations, such as inventory purchases, payment of employee wages, rent payments for the business premises, etc.

Example:
Let’s say you are a French national planning to open a boutique coffee shop in New York. Here’s how the investment and lawful source of funds process would work for E-2 qualification:

• Investment and “Substantiality”:
  • You determine the total establishment cost for the coffee shop is $200,000, including lease payments, renovations, furniture, and initial inventory. That means that you must be prepared to invest $200,000 in the business enterprise by wiring the money to the business bank account 
  • In order for the investment to be “irrevocably committed”, a general rule is  at least 20-30 percent of the total investment amount must be spent on the operational expenses of the business, such as payment of inventory, equipment, rental of the leased premises, paying employee wages, marketing, advertising fees, etc. Accordingly, in this example, at least $40,000 would be spent to prepare for the launch of the business (20 percent of the total investment amount)

Making these expenditures demonstrates your serious commitment and ensures the shop has enough capital to operate successfully. 

• Lawful Source of Funds:
  • You have $100,000 from personal savings earned through your salary as a marketing manager. Additionally, you sell a property in Paris, earning another $100,000.
  • To prove the lawful origin of your employment funds, you must provide personal bank statements showing salary deposits totaling the $100,000 earnings from employment, tax filings verifying payment of income taxes, etc. 
  • To prove the lawful source of funds for the property, you must provide documentation evidencing the lawful source of funds for the initial purchase of your property, as well as sales contracts, personal bank statements showing the sales proceeds deposited to your bank account, etc. 
  • You must also provide transfer records showing how the money moved from your French bank account to your U.S. business account. 
    

• Irrevocable Commitment:
  • As stated, you commit the funds by making business expenditures totaling at least 20 percent of your total investment, i.e. paying for the shop space, purchasing equipment (e.g., coffee machines and furniture), paying employee wages, etc. 
  • Receipts, contracts, and invoices demonstrate the funds are at risk and tied to operational expenses, showing that your investment is not speculative but actively supporting the business’ operations. 

This example highlights the importance of clearly documenting every step, from the source of your funds to how they are invested in the business. It also emphasizes the need to meet the “substantiality” requirement and irrevocably commit your capital to the venture.

Intention to Develop and Direct the Enterprise

As an E-2 treaty investor, your entry into the U.S. must primarily be to develop and direct business operations through active management of the business. This is demonstrated by exercising an active leadership role within your company such as Chief Executive Officer, and maintaining a minimum 50% ownership stake in the enterprise.

What constitutes developing and directing the business?

Active business development and direction requires the investor to fulfill the following responsibilities:

• Overseeing daily business operations
• Participating in crucial decision-making processes
• Leading enterprise activities in an executive capacity (such as Chief Executive Officer)

The E-2 visa regulations explicitly prohibit the treaty investor from performing subordinate employee duties or maintaining a passive role in the business.

Example:
Imagine you own a 60% stake in a tech startup in California. To show that you are actively developing and directing the enterprise:

• You oversee daily operations, such as managing project timelines and budgets.
• You make key decisions, like approving contracts and forming strategic partnerships.
• You serve as the CEO, leading your team and shaping the company’s vision and goals.

By taking on these roles, you demonstrate active management and leadership, fulfilling the E-2 visa requirement to develop and direct the business. It’s important to note that the enterprise cannot be a one-person operation; you must have employees or collaborators to support business operations effectively.

Nonimmigrant Intent

The E-2 visa is classified as a nonimmigrant visa, granted temporarily to enable foreign investors to manage their U.S. business operations. With that said, investors must acknowledge the visa’s temporary nature and affirm their intention to depart the U.S. upon completing their authorized stay. This nonimmigrant intent is demonstrated through signing a formal declaration and providing evidence of strong connections to your home country.

E-2 visa holders must navigate complex legal requirements when planning for permanent residency. The visa’s nonimmigrant classification means holders cannot express immigrant intent at the time of applying for the visa and entry to the United States. E-2 visa holders can later form the desire to immigrate and explore permanent residency options.

The E-2 visa’s temporary nature requires careful consideration of various factors, including:

• Business growth potential and its alignment with permanent residency requirements
• Age-out concerns for dependent children
• Maintaining valid status throughout any transition process
• Coordinating family members ‘ immigration timing
  

Understanding these limitations helps create a realistic timeline for pursuing permanent residency.  It’s important to note that while the E-2 visa is temporary, the number of extensions an E-2 visa investor may request is not restricted.

Maintaining proper documentation of business growth and job creation is crucial for investors seeking a transition to permanent residence. These elements can support future immigration applications while fully complying with E-2 requirements.

How the E-2 Visa Differs from Permanent Residency (Green Card)

The fundamental distinction between the E-2 nonimmigrant visa and permanent residence lies in its temporary nature. 

While there is no limit to the number of extensions an E-2 nonimmigrant may be granted, E-2 investors must maintain the business operations and demonstrate an intent to depart when their status terminates.

Unlike permanent residents, E-2 investors:

• Can only work for their investment enterprise
• Must maintain active business operations
• Need periodic visa renewals

How the E-2 Visa Simplifies Family Relocation to the U.S.

As an E-2 visa holder, your family members can accompany you to live in the United States by applying for dependent E-2 visa applications. Eligible dependents, include your spouse and unmarried children under the age of 21. 

The E-2 investor visa program in the United States provides advantages for family members, delivering opportunities that enable both career development and educational opportunities. It’s essential to consider these family benefits when planning your immigration strategy to the United States.

Spouse Work Authorization

Spouses of E-2 visa holders receive employment benefits in the United States. On November 12, 2021, USCIS announced that E-2 spouses are employment authorized incident to their status. Upon entering the U.S., CBP issues the notation “E2S” as evidence of their employment authorization. 

This authorization enables them to:

• Accept employment with any U.S. employer
• Establish their own company
• Engage in part-time or full-time work
• Obtain a Social Security Number (SSN)

Spouses receive an I-94 document with the “E-2S” designation, which validates their work authorization. This official document eliminates the need to apply for a separate Employment Authorization Document (EAD), although spouses may request one. 

Children’s Status and Education

Dependent children who are unmarried and under age 21, may apply for an E-2 visa to accompany the principal treaty investor to the U.S. Their educational benefits include:

Academic Rights:

• Enrollment in education programs
• Eligibility for public and private schools
• Access to colleges and universities
• Exemption from separate student visa requirements

However, certain limitations apply to children. They cannot work under their E-2 dependent status, and their eligibility for the visa expires at age 21. When this occurs, they must either transition to a different visa classification or depart from the United States.

Simplified Relocation Process

The E-2 visa gives entrepreneurs and their families an easy way to move to the United States. This visa type makes the challenging immigration process more manageable in a few ways:

Clear Visa Eligibility Criteria

The E-2 visa has simple eligibility rules requiring a significant investment in a U.S. business. Unlike other visas that require evidence of a job offer, or require you to meet specific academic or work experience requirements, the E-2 visa considers the adequacy of your business investment, the lawful source of your investment, whether your company is real and operating, your plans to hire workers, and direct the business in a leadership capacity. These clear rules are easy for investors to follow and confidently prepare their application.

Consular Interview Wait Times

Interview wait times at U.S. embassies and consulates worldwide have significantly improved for E-2 visa applications. Many are taking just a few months to review applications and schedule interviews. 

This affords families the opportunity to more easily plan their relocation to the U.S., and the flexibility to arrange school enrollments and housing well in advance. 

With these options in mind, families can experience greater convenience and flexibility when applying for their visas.

Easy Dependent Applications

The E-2 visa program keeps families together by allowing family members to apply for E-2 dependent visas, including the spouse and unmarried children under 21 of the treaty investor. 

Families can apply for their E-2 visas together at the U.S. Consulate, by filing Form DS-160 and presenting the necessary supporting documentation on the day of the scheduled interview. 

Alternatively, the E-2 investor may file Form I-129, Petition for a Nonimmigrant Worker, seeking a change of status with USCIS, and his or her dependents may each file Form I-539, Application to Change Nonimmigrant Status with USCIS. 

Regardless of when they apply for their visas, dependent family members receive the same validity period as the principal treaty investor. 

Applying as a family group removes the hassle of dealing with different visa timelines and ensures families can move together without problems.

Building a New Life in the U.S.

The E-2 visa creates a strong base for families to settle in America. Business owners can focus on growing their companies while their kids dive into American schools and culture. The issuance of automatic employment authorization for E-2 spouses allows both partners to have careers, increasing the household income and quality of life. This all-around helps families fit into American life.

Considerations for Long-Term Planning with an E-2 Visa

The E-2 visa offers foreign investors and their families the opportunity to live and work in the United States, while managing a business venture. However, it is important to recognize that the E-2 visa only provides nonimmigrant status, meaning it does not provide a direct path to permanent residency. E-2 visa holders and their family members must maintain an intent to return to their home country when their visas expire.

That said, E-2 visa holders may explore alternative pathways to permanent residency if they wish to establish a long-term presence in the U.S. These options include:

• Family-Sponsored Green Cards: Eligible E-2 visa holders can apply for permanent residency if sponsored by a U.S. citizen or lawful permanent resident family member.
• Employment-Based Green Cards: This includes categories like EB-1 for individuals with extraordinary abilities, or EB-2 (such as the National Interest Waiver) for those seeking a waiver of the labor certification requirement 
• EB-5 Immigrant Investor Program: Some E-2 investors transition to the EB-5 visa by making a qualifying investment of at least $800,000 (or $1,050,000 depending on the location) in a U.S. business that creates a minimum of 10 full-time jobs for U.S. workers.

It is important to note that pursuing these pathways involves meeting different eligibility requirements, and the E-2 visa itself does not inherently make these transitions easier or guaranteed.

Because these options require careful planning and compliance with U.S. immigration laws, working with an experienced immigration attorney is essential. A skilled lawyer can help evaluate your circumstances, navigate the complexities of transitioning from the E-2 visa, and identify the most viable strategy for achieving long-term residency goals in the United States.

Conclusion

In exploring these pathways, E-2 visa holders can find opportunities to align their business goals with long-term immigration objectives. With careful planning and proper legal guidance, entrepreneurs and investors can navigate the complexities of U.S. immigration, using their business’ success to make a transition to permanent residency. By taking proactive steps, they can ensure stability and security for their families while continuing to grow their businesses and contribute to the U.S. economy.

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