-
The E-2 “Investor” Visa
The E-2 is another popular business immigration visa for the foreign entrepreneur who wants to buy or start up his/her own U.S. business. This is the nonimmigrant "investor" visa that could provide you with the ticket to living and working in the U.S. while you direct and control your investment. Mr. Barone discusses the E-2 below and provides some straight forward answers to frequently asked questions about this business immigration visa.
What is the E-2 Investor Visa?
The E-2 visa is for “investors” and is a nonimmigrant visa that permits a business person and his/her family to work and live in the U.S. The amount and source of the investment are key requirements.
What are requirements for the E-2 Investor Visa?
The requirements for the E-2 Investor visa are:
1. There must be a investor treaty between the U.S. and the applicant’s country;
2. The individual or business must possess the same nationality as the treaty country;
3. The applicant has invested or is in the process of investing
4. The U.S. is a real, active and operating commercial enterprise
5. The investment must be “substantial”
6. The investment is more than a marginal one solely for earning a living
7. The applicant must be in a position to control and direct the U.S. enterprise
8. The applicant intends to depart from the U.S. when the E-2 status terminates.
How can I find out if my country has an investor treaty with the U.S.?
Click here to get the list of Treaty Countries that have E-2 investor treaties with the U.S.
What does “nationality of a business” mean?
The nationality of a business is the same nationality as its owner(s). Therefore, the nationality of the owner of at least 50% of the U.S. company will confer his/her same nationality onto the company. And, yes, 50% will satisfy.
What constitutes an “investment?
Investment means placing funds or other capital assets at risk in the hope of generating a financial return. Therefore, the E-2 will not be issued to not-for-profit organizations. The funds must be subject to being lost as in any risk investment.
Does it matter where I get the money to invest?
Yes. The source of the money is an important requirement. The applicant must have control of the funds being invested and have received the funds through legitimate means like savings, gifts, inheritance, settlements and even loans. However, if the funds come from loans, then special rules apply to this indebtedness i.e., business loans secured by the assets of the U.S. Company do not count in the amount invested.
How “active” must the U.S. Company be?
The U.S. Company must be real and active producing some service or commodity. It cannot be a paper organization or passive and inactive. It can’t be an idle speculative investment held strictly for potential appreciation in value such as undeveloped land or stocks.
How much of investment is considered to be substantial?
No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E-2 visa purposes. This requirement is met by satisfying the "proportionality test." The test is a comparison between two figures: The amount of qualifying funds invested; and, the cost of an established business or, if a newly created business, then the cost of establishing such a business. The amount invested in the enterprise should be compared to the cost (value) of the business by assessing the percentage of the investment in relation to the cost of the business. If the two figures are the same, then the investor has invested 100% of the needed funds in the business. Although there is a landmark case on this issue in this field where an E-2 was approved on an investment of just over $15,000.00, the old adage of “bigger is better” still holds true.
What does the “marginality” requirement mean?
An applicant will not qualify for the E-2 if the investment will return only enough income to provide a living for the applicant and family. This is generally interpreted as a need for the U.S. Company to have some employees. Mr. Barone recommends adding proof that the U.S. Company has a positive economic impact or trickle down on related companies i.e., your U.S. Company makes money for other U.S. Companies.
How long is the E-2 Investor visa valid for?
It depends upon the particular treaty between your country and the U.S but Canadians, for example, can get approved for five (5) year visas. The E-2 visa is renewable for as long as the applicant is conducting business in the U.S. and qualifies.
What about my spouse and children?
Spouses and children under 21 may also receive derivative E-2 visas. The nationality of a spouse or child of an E-2 visa treaty trader does not govern eligibility for derivative E-2 visa status.
Can my spouse and children work in the U.S. if they get E-2 visas?
Spouses may apply for and obtain employment authorization. Children can attend school but cannot obtain employment authorization.
Do I have to maintain my foreign residence while in the U.S. on the E-2 visa?
No. E-2 visa holders do not have to keep their foreign residences. The E-2 visa is temporary, however, and the applicant must declare intent to depart the U.S. when the E-2 visa is terminated.
Is the E-2 visa the same as green card?
No, the E-2 is temporary. The green card is permanent.
Describe the general process in getting an E-2 investor visa?
Because a “visa” is required, application for the E-2 visa must be made to the State Department at an American Embassy or Consulate in your homeland. Proper application forms are submitted along with evidence of your qualification for the E-2. If your evidence of qualification is acceptable and your application is approved by the Consulate, then you are called in for an interview appointment and the E-2 visa is stamped into your passport.
Can employees of the E-2 investor visa holder, get E-2 visas?
Yes. But the employee must also have the same nationality as the U.S. Company and must prove that he/she is will hold either an executive or supervisory position or is an essential employee. There is an additional burden to show how long the employee will be needed.
If I’m already in the U.S. on some legal status, can I still apply for the E-2?
Yes. Individuals in the U.S. may change their status to E-2 visa status or extend their E-2 visa status by filing the necessary documents with the appropriate U.S. Citizenship and Immigration Services (USCIS) Service Center. However, they will still need a visa for when they travel outside the U.S. in order to re-enter.
I thought Canadians were exempt from getting visas?
Mostly true, but not for the E-2 visa. Canadians are not exempt from applying for an E-2 visa. Canadians will not be readmitted to the U.S. at the port of entry without first applying for the E-2 visa at a U.S. Consulate.
What if I have an inadmissibility problem?
If an individual has an inadmissibility problem, an E-2 visa may be the most expeditious way of obtaining an INA § 212 (d) (3) waiver because the waiver is processed at the Consulate along with the E-2 visa application. This can shortcut 6-9 months of waiting for immigration to process the waiver request.
Can I email Mr. Barone with some questions?
Yes. Emailing is free. Just click here: abarone@srwlawyers.com with your questions.
Can you give some examples of E-2 cases?
Yes, see E-2 Example Cases.
How can get specific questions about my case answered?
For that, it would be necessary to speak with Mr. Barone and have a consultation - much like a Doctor must do in order to give you an accurate diagnosis.
Tell me more about a Consultation.
Information is valuable. A consultation is an informational session spent with Mr. Barone getting the details of your case. Confidential specific questions and answered are exchanged. Your qualifications and your immigration goals will be discussed. He will analyze your facts and tell you what your options are, if any. If you do have options, then he will provide an immigration strategy and a plan and tell you what the legal fees and costs will be. The consultation can be by telephone and is not timed. In fact, the consultation continues beyond one session if you have follow-up questions. The charge is $180.00 and there is no additional charge for follow-up questions. If Mr. Barone is engaged as the attorney, the cost of the consultation will be credited to your total legal fees. If you’re interested, email him for an appointment at abarone@srwlawyers.com.