E2 - Treaty Investors
There are many ways to live and work in the U.S. However, the E-2 represents one of the few ways to build your own business as a foreign entrepreneur. The process of obtaining this visa is relatively uncomplicated compared to popular visas like the H-1B, but qualifying is a different story. Find out what you need to be eligible for the E-2 treaty investor visa.
E-2 treaty investor visas are non-immigrant visas reserved for foreign entrepreneurs of countries that have a Treaty of Trade and Commerce with the U.S. Essentially what this visa does is enable the foreign investor to develop or carry out the investment/ trade activities of the business.
Processing times and Period of Stay/Extension of Stay
An E-2 visa is a very document-intensive petition. In addition to a number of government forms, the visa requires the submission of a binder full of documentation that is often quite lengthy.
Once the documentation is prepared, the processing time depends on the processing time at the consulate that is located in the applicant’s country. This could range from 3 weeks to 3 months (or longer).
Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no limit to the number of extensions an E-2 non-immigrant may be granted. All E-2 non-immigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
An E-2 non-immigrant who travels abroad may generally be granted, if determined admissible by a U.S. Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States.
Requirements & Eligibility
YOU MUST BE A NATIONAL OF A TREATY COUNTRY
Only available to people from the countries that the U.S. has a Treaty with. Many Western countries are on the list but there are also countries from Africa, Asia, and the Middle East on the list.
YOU MUST HAVE INVESTED OR BE ACTIVELY IN THE PROCESS OF INVESTING IN THE ENTERPRISE
In order to satisfy this part of the test, you must fulfil three requirements.
Show Legitimate Possession and Control of the Funds
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Must invest funds that you have obtained by lawful means
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Must prove to the government that you either saved the money, were given the money as a gift, or legitimately earned the money
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To prove this you need tax returns, bank statements, investment accounts, and more
All Funds Invested Must Be “At Risk” and Irrevocably Committed
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All of the assets invested must be personal assets subject to risk of loss
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Loans are fine but you must be on the hook if there is a loss and this requirement forces you to sign contracts and/or spend money prior to the approval of the Visa
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At-risk money does include credit card debt or other loans as long as those debts are not secured by business assets or in the name of a limited liability business
You Must Be Close to Starting the Business
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The U.S. government does not want to approve Visas for people who “may” set up a business in the U.S. or who have a “desire” to start a business
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Must be at the start up ready phase
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Should have a signed lease
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Business bank account should be set up
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Should have a website
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Should have purchased whatever you need to get the business up and running
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YOU MUST BE IN A POSITION TO “DEVELOP & DIRECT” THE BUSINESS WITH SKILLS
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You must be the one that is going to direct and run the business
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Must have the appropriate skill set such that the government has faith that the business will be viable
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Educational background and experience should suggest that you will be in a position to make the business a success
YOUR INVESTMENT MUST BE SUBSTANTIAL
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Investment could be as low as $15,000 or as high as millions
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Idle cash sitting in a business account is NOT considered an investment, but the government will consider a reasonable amount of working capital as part of an investment
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Make sure to keep records of all of your expenditures since the government will want to see them
A substantial amount of capital is:
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Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
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Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
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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.
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A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
YOUR INVESTMENT & BUSINESS CANNOT BE MARGINAL
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Business cannot be set up so that it provides a means of living just for yourself and your family
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Put together a business plan that shows growth over a 5-year period or by showing that you plan to hire employees in the future.
YOU MUST INTEND TO RETURN TO YOUR HOME COUNTRY AFTER EXPIRATION OF THE E-2 VISA
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Sign a document that indicates you plan to return home once your visa expires
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You do not have to show any ties to your home country
Application Process
There are two ways you can apply for an E-2 visa. These are described below.
APPLYING FOR AN E-2 VISA WHILE IN THE U.S. (CHANGE OF STATUS)
Step 1: While having another type of VISA, you can file a petition to change status to an E-2 visa with the United States Citizen and Immigration Services (USCIS).
Step2: The I-129 form you must file is the same form filed for many other non-immigrant visas (e.g. H-1B), and you would also complete the E-2 visa supplement.
Step 3: This petition is document-intensive, and you must provide documentation to support all of the elements outlined in the E-2 visa requirements.
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Change of status does NOT permit you to re-enter the country the way an E-2 visa would
Step 4: E-2 status is typically granted for a 2-year period.
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if you have dependents on your visa that are also in the U.S. (e.g. H-4) and you want to change their status, you must also file a Form I-539
APPLYING FOR AN E-2 VISA AT A CONSULATE (AN E-2 VISA)
Step 1: If you are outside of the U.S., you must file a DS-160, a long application that is completed online.
You must also complete a DS-156E supplement.
Step 2: The documentation that you must provide is generally the same as the documentation required to file within the U.S. with USCIS.
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The consulate may impose some additional, specific procedural requirements.
Step 3: E-2 visas are typically granted for between 2 & 5 years, and you are permitted to leave and enter the U.S. whenever you like.
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If you have dependents, separate DS-160 applications must be completed for them.
A FEW THINGS TO CONSIDER WHEN DECIDING
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If you have been granted a change of status and leave the U.S., you must qualify for an E-visa at a consulate before re-entering.
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You must reapply for the E-2 from scratch and submit all supporting documentation as if the application were a new one.
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If you are in E-2 status as a result of a change in status, this fact will not speed up your consular adjudication or otherwise expedite your E-visa application at a consulate.
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Consular E-visas can be issued for 5 years whereas USCIS will only issue E-2 status for 2 years.
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Note that this could be particularly relevant in light of the marginality requirement of the E-2 visa.
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Convert E-2 visa to Green Card
While no US non-immigrant visa automatically leads to a Green Card some of the common options include:
E-2 AND EB-5 INVESTOR VISA PROGRAM
This strategy enables an E2 investor to move to the US immediately on their E2 visa but to have the option of leveraging their US business to obtain a “green card” over the longer-term.
DIRECT EB-5
If your E-2 business becomes large enough and employs enough people, it may be eligible for a Direct EB-5 visa. The minimum investment amount is $900,000 and the required number of jobs is ten.
You must carefully consider the location of your business because only investments in Targeted Employment Areas are eligible for the lower $900,000 investment amount. Outside of these areas, the requirement capital doubles to $1.8 million.
REGIONAL CENTER EB-5
Tying E-2 business to the requirements of the EB-5 program can be commercially restrictive, many people who pursue a Green Card from E-2 through EB-5 prefer to invest with a Regional Center instead. For example, it can be a challenge to maintain headcount to meet the EB-5 rules. Failure to do so can put your Green Card at risk.
E2 AND EB1(C) FOR THE INTERNATIONAL MANAGER OR EXECUTIVE
You must be a business in your home country with a qualifying relationship to your US E-2 Business and have worked at the overseas company for at least one of the three years immediately prior to moving to the United States on your E-2 Visa.
You must also demonstrate an “intent to depart” when you apply for your E-2 Visa, which can conflict with plans to obtain a Green Card under EB-1c. It is vital you discuss your options with an immigration attorney at the beginning of the process.
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