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E-2 Visa

The E-2 treaty investor visa category is helpful to business owners, managers, or employees who need to remain in the U.S. for extended periods to oversee or work in an enterprise that represents a major investment in the U.S. The E-2 nonimmigrant classification allows a national of an E-2 treaty country to be admitted to the United States when investing substantial capital in a U.S. business.

Certain employees of an E-2 qualifying business may also be eligible for this classification. An E-2 treaty investor may come to the United States either solely to develop and direct the E-2 enterprise operations in which he has invested a substantial amount of capital or an enterprise in which he is actively in the process of investing a substantial amount of capital.

The essential requirements for an E-2 treaty investor visa application include:

  • The requisite treaty exists;
  • The individual and/or business possess the nationality of the treaty country;
  • The E-2 treaty investor visa applicant has invested or is actively in the process of investing into a U.S. enterprise;
  • The enterprise is a real and operating commercial enterprise;
  • The visa applicant’s investment is substantial;
  • The visa applicant’s investment is more than a marginal one. This means that the visa applicant investment needs to lead to earnings that are more than what is necessary for earning a living;
  • The visa applicant is in a position to “develop and direct” the E-2 enterprise;
  • The visa applicant who will have an executive/ supervisory position or possesses skills essential to the company’s operations in the United States;
  • The E-2 treaty investor visa applicant intends to depart the United States when the E-2 visa status terminates.

What is an e-2 visa

An e-2 treaty investor visa allows individuals from E-2 treaty countries to work for a U.S. business in which a substantial cash investment has been made by E-2 treaty investors or citizens of their home country. In addition, the E-2 treaty investor visa classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains an international qualifying agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

Requirements

To qualify for an E-2 visa, you must meet these requirements first:

  1. There must be a treaty between your country and US.
  2. At least 50% ownership must be held by the national of the treaty country or a foreign corporation. Suppose the E-2 enterprise is owned by a foreign corporation. In that case, the foreign corporation must be owned by the nationals of the treaty country.

Further E-2 Requirements:

1. Active investment:

  • The e-2 investor must make an irrevocable commitment to funds representing an actual, active investment.
  • The investor should be close to the start of actual business operations.
  • The e-2 investor can’t be a passive investor – he or she should actively participate in the business management.

2. Substantial investment:

  • There is no minimum dollar amount necessary for the investment to be considered substantial. Instead, the government applies multiple tests to evaluate the substantiality requirement.
  • The investment must be proportionate to the total value of the particular enterprise in question. This test usually applies to existing businesses.
  • Alternatively, the investment must be an amount typically considered necessary to establish a viable enterprise of the type planned (usually applies to a new business).
  • The amount of money necessary to establish a viable enterprise is dependent on the nature of the business.

a. Qualifying investments:

  • Loans secured by the investor’s own assets, such as a mortgage on his real property
  • Unsecured loans
  • Cash reserves placed in a business account at the disposal of the business for the purchase of equipment, property, or startup inventory
  • Value of purchased equipment and property

b. Nonqualifying investments:

  • Mortgage debt or loans secured by the enterprise assets
  • Secured loans
  • Cash not held in reserve by the corporation, such as personal bank account
  • Rental payments, inventory purchases, and other recurring costs beyond the enterprise’s startup.

3. The enterprise cannot be marginal:

The enterprise is marginal when it does not have the present or future capacity to generate more than minimal living for the investor and his family.

The Applicant should expect to provide a 5-year business plan

Marginality factors to consider:

  • E-2 Investment will expand job opportunities
  • The investment will generate other sources of income
  • The investment will generate income substantially above what would be viewed as a living
  • The E-2 investor will not simply work as a skilled or unskilled worker but will have an executive or top managerial role

4. The investor must have an essential role in the enterprise

a. Principal investor:

As a principal investor, you must be responsible for the development and direction of the investment. Usually, ownership by an individual investor of at least 50% of the business is enough to qualify the principal investor based on control.

b. An employee of the E-2 Enterprise:

An employee of the E-2 Enterprise can be an E-2 treaty national serving in a managerial capacity. Alternatively, an e-2 employee can be someone serving in the technical capacity requiring special training and qualifications and who are needed to establish the startup, train or supervise persons serving in technical positions, or continuously monitor and develop product improvements and quality control.

Application form

The process of E2 application involves the preparation of forms and supporting documents. The E2 process will depend on whether the E2 applicant is present in the US or abroad during the E2 visa application.

If the E2 applicant is present in the US, the application is made through the I-129 petition. If an E2 applicant is applying abroad, the application is made through the consulate abroad. The application packet for E2 Visa typically includes DS-160 visa application, E2 forms, and supporting E2 documents.

Document checklist

To apply for an E2 U.S. visa, the applicant should expect to provide the documents based on

the following E2 visa document checklist:

  • passport biography pages
  • proof of valid US status, if applicable
  • proof of treaty company ownership, including corporate documents
  • documents showing the original source of the e2 visa investment funds and proof of your funds’ ownership, which could include property deeds, proof of property sales, proof of earnings, bank statements, gift deed, wire transfers, etc.
  • use of funds for qualifying business expenses: invoices and receipts for purchases made for the business (equipment, tools, decoration, inventory, etc.); bank statements matching expenditures; lease agreement for the business premises (corporate offices, store, restaurant); telephone and internet; business vehicle
  • evidence of real and operating U.S. enterprise: FEIN number assigned by IRS; corporate registration; lease agreement; information about the premises and photos of the office space; business bank account; required business license applicable to your type of business (restaurant, real estate); etc.
  • proof of payroll set up
  • list of employees, social security numbers, legal status, positions, if applicable
  • 5-year business plan/projections
  • evidence applicant is well-positioned to run the enterprise to success

Processing time

The processing time for E2 visa applicants present in the US: For E2 visa applicants physically present in the United States in proper legal status, E2 visa applications can be filed directly with USCIS. Applicants can request regular e2 application processing or premium e2 application processing. Generally, USCIS will take approximately three to six months to process the application. Alternatively, applicants have the option of paying a premium processing fee of $2,500 for a 15-calendar-day e2 application processing. If approved, the application will change status to e2 status valid for up to 2 years. Please note that a status change within the U.S. will not result in the E2 Visa stamp in the passport. For example, suppose the e2 investor applicant wishes to leave the U.S. to travel. In that case, they will have to apply for an e2 visa stamp at a consulate abroad to re-enter the U.S.

The processing time required by U.S. Consulate Process for investors outside of the USA: The majority of E2 applications are filed with the U.S. Consulates abroad. The processing time for an E2 visa can vary significantly by each consulate but generally ranges from about two weeks to four months. Please note that due to COVID, there may be more processing delays. Typically, the process involves submitting the required documents to the consulate for initial review. After the consulate completes the initial review, the consulate will either interview the e2 visa applicant or issue a request for further documentation. If the E2 visa application is approved, it may take the consulate another week to issue the visa.

Countries

Countries of Africa:Cameroon, Congo/Republic of the Congo, Democratic Republic of the Congo, Egypt (transcontinental - generally considered African), Ethiopia, Liberia, Morocco, Senegal, Togo, Tunisia
Countries and territories of Asia:Armenia, Azerbaijan, Bahrain, Bangladesh, China, Egypt (transcontinental - generally considered African), Georgia (transcontinental - generally considered Asian), Israel (U.N. member, though partially unrecognized), Japan, Jordan, Kazakhstan (transcontinental - generally considered Asian), Kyrgyzstan, Mongolia, Oman, Pakistan, Philippines, Singapore, South Korea (Republic of Korea), Sri Lanka, Thailand
Countries of Europe:Albania, Armenia , Austria, Azerbaijan , Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czechia/Czech Republic, Denmark, Estonia, Finland, France, Georgia (transcontinental - generally considered Asian), Germany, Ireland, Italy, Kazakhstan (transcontinental - generally considered Asian), Kosovo, Latvia, Lithuania, Luxembourg, Moldova, Montenegro, Netherlands, Macedonia, Norway, Poland, Romania, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey (transcontinental - generally considered European), Ukraine, United Kingdom, Yugoslavia
Countries of North America:Canada, Costa Rica, Grenada, Honduras, Jamaica, Mexico, Panama, Trinidad and Tobago
Countries of OceaniaAustralia, New Zealand
Countries of South America:Argentina, Bolivia, Chile, Colombia, Ecuador, Paraguay, Suriname

Approval Rate

In 2019, the E2 visa approval rate was 89%. According to the Department of State figures, the average approval rate over the past five years is approximately 80%, with most applications made by citizens of Japan, Germany, France, Canada, and Great Britain.

While the majority of applications are approved, the 20% refusal rate in recent years remains sizable, showing a notable proportion of applications fail to make the cut.

The E2 approval rate for the top 15 E2 Countries include:

  1. Japan
  2. Canada
  3. Great Britain
  4. Germany
  5. France
  6. South Korea
  7. Mexico
  8. Italy
  9. Spain
  10. Taiwan
  11. Turkey
  12. Sweden
  13. Argentina
  14. Colombia
  15. Australia

Minimum investment amount

Minimum investment amount requirement of substantial investment, or in other words, what is the necessary amount of the E2 visa investment:

First, there is no minimum dollar amount necessary for the E2 visa investment amount to be considered substantial. The government applies a “proportionality test” to E2 visa applications to determine whether an E2 visa investment is substantial.

(1) The E2 visa investment amount must be proportionate to the total value of the particular business (usually applies to existing businesses), or

(2) The investment must be an amount typically considered necessary to establish a viable enterprise (usually applies to new businesses). The amount of money necessary to establish a viable enterprise is dependent on the nature of the business. The amount that is necessary to get the business off the ground.

Generally, for a business that requires a smaller startup capital, an e2 visa investor must invest a more significant percentage of that startup capital for such investment to be considered substantial.

By contrast, for a business that requires a large amount of startup capital, the initial investment may be a smaller percentage of that capital amount and still deemed substantial for E2 visa application purposes.

The takeaway: No minimum dollar amount is necessary for the E2 visa investment to be considered substantial. There is no clearly defined “investment vs. total startup cost ratio” that determines substantiality.

Investment examples

As an investment example, a software development startup company requires a total initial capital infusion of $80,000 to get started. In this situation, the startup may need to invest 85% to 100% of the $80,000 capital to establish a substantial investment.

On the other hand, a company that will be manufacturing smart mobility products requires a total initial capital of $2,000,000. In this scenario, the startup may only need to invest 15% ($300,000) of its required total startup capital of $2,000,000 for that investment to be deemed substantial for e2 visa application purposes.

Costs

The e2 visa costs can vary depending on various factors, including complexity of the case. The average attorney’s costs for e2 visa application can range between $6,000 and $7,000.

The e2 visa costs would normally cover services such as:

  • Direction and guidance in gathering the required documentation
  • Consultations with the client and legal advice regarding each step in the process
  • Review of client’s documentation
  • Review of the business plan to ensure it properly highlights the E-2 requirements
  • Preparation of the applicable immigration forms
  • Preparation of the Legal Memorandum supporting the case, which explains how you qualify for E-2 visa

Other e-2 costs the applicant should anticipate:

  • Government filing fees
  • 5-year business plan
  • Incorporating a business or filing applicable business licenses

Government Filing fees:

  • If applying in the US, the government fees include
  • I-129 (E-2) petition: $460
  • I-907 Premium processing: $2,500 (OPTIONAL) – USCIS promises to adjudicate the petition within 15 days

If Applying Abroad:

DS-160 visa fee will depend on U.S. reciprocity with a national’s country.

Business plan

An E-2 business plan is a document that illustrates the potential of an investment, its sustainability, and long-term profits. A comprehensive business plan should include a description of the business, its products or services, and its objectives.

A detailed business plan should also include at least the following:

  • Mission Statement
  • Full Description of the Business
  • Market analysis, including competing businesses and their relative strengths and weaknesses
  • Marketing strategy
  • Description of the target market and prospective customers, including pricing, advertising, and servicing
  • Organizational chart
  • The plan should set forth the business’ organizational structure
  • The business plan should include five years of financial projections and five years of hiring projections
  • Curriculum Vitae of principal and essential employees
  • The business plan should list the required permits and licenses
  • If applicable, the business plan should describe the manufacturing or production process, the materials needed, and the supply sources
  • The e2 business plan should contain sales, cost, and income projections for the next 5 years
  • Most importantly, the business plan must be credible.

Business plan cost

An e2 visa applicant can hire a company specializing in e2 visa business plan drafting. These services typically cost around $1,500 – $2,000 for a business plan for small to medium-size businesses. For larger and more complex business structures, business plans can typically costs between $2,000 and $10,000.

Termination of employment

If E 2 employment is terminated, the nonimmigrant E 2 status of an E 2 employee associated with that employment is generally regarded as terminated. The foreign national should either file to change the employer, apply for a different status, or depart the country to avoid violating the E2 visa status.

Substantive change

A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the alien’s eligibility for E-2 classification. Examples of substantive change include mergers and acquisitions as well as the sale of the division where the e2 employee works.

If there has been a substantive change and the E-2 treaty investor or enterprise wishes to continue to employ the foreign national in E-2 status, they must notify USCIS by filing a new Form I-129 with applicable fees. Form I-129 must include evidence to show that the treaty investor or the affected employee continues to qualify for E-2 classification.

Renewal problems

The E-2 visa holders can face renewal problems if there are no changes in the company’s development. Renewing the E-2 visa requires the applicant to show that their new application is similar to their initial one and that they are meeting the objectives of their original business plan. The e-2 applicant will need to show that the growth and income were the results of their original stated business labors. Revenue streams from different business labors other than stated on the original application will be a cause for closer scrutiny of the e2 renewal application.

E 2 dependent visa

Spouses and children may seek E-2 classification and, if approved, generally will be granted the same period of stay as the principal e2 applicant. If the family members are already in the United States and are seeking to change status to E2 or extend E2 status,  they may apply by filing Form I-539 with applicable fees. Furthermore, Spouses of E-2 principal applicants in valid E-2 status are allowed to work in the United States.

Previously, spouses of E-2 visa holders had to apply for Employment Authorization before they could begin employment. However, USCIS is currently in the process of changing its policy, which will allow the spouses to obtain employment authorization incident to their E2 status. The proof of employment authorization will be noted on the spouse’s Form I-94 and will be accepted as proof of employment authorization under List C of Form I-9. Furthermore, unlike the principal E2 applicant, the spouse’s employment is not employer or position-specific.

Dual intent

The E2 visa is not a dual intent visa. This means that E2 applicant needs to have an intent to depart the United States upon their E2 visa status expiration. The E2 visa applicant’s expression of an undeniable intent to depart the United States upon the termination of their E2 status is normally sufficient.

Nonetheless, this requirement does not prevent E2 visa holders from applying for a green card and remaining in the U.S.  if their intentions change later. However, timing becomes an important aspect because the E2 visa holder possibly may not be able to renew their E2 status while their green card is pending as they have signaled to USCIS or consulate abroad that they have immigrant intent.

FAQ

How long is the e 2 visa valid for?
The E 2 visa allows qualifying investors and employees to stay in the U.S. for a maximum of two years. Requests for extension of stay in E 2 status 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 nonimmigrant may be granted. An E 2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States with a valid E 2 visa.
Can e-2 visa holder work for another company?
An e-2 visa holder can only work for the e-2 visa sponsoring company and conduct activities for which he or she was approved for. In other words, an e-2 visa is employer and position specific. Luckily, the regulations allow the e-2 visa holder to work for the e-2 company’s parent company or one of its subsidiaries so long as the relationship between the companies is established, the subsidiary employment requires executive, supervisory, or essential skills employee; and the terms and conditions of employment remain the same. Therefore, the beneficiary of an E-2 Visa cannot work for another company.
Who is eligible for E2 Visa
To be eligible for E2 Visa, you must be a citizen of a country with an E2 investor treaty with the US; You must be coming to work for an E2 company you own or one that is owned by at least 50% nationals of your home country; You must be an owner or a key employee of the US company; You or the company must have made a substantial investment in the US business; The US company must be an active, for-profit business; and You must intend to leave the US when your business is done.
E-2 visa to green card
There are multiple pathways from E 2 visa to green card. Unfortunately, none of them are automatic. Some pathways may include EB-5 green card, through a U.S. employer, EB-1A green card, National Interest Waiver (NIW), and a marriage-based green card.

When to consult with the E-2 visa lawyer?

Every case has its own set of facts and circumstances. We can help you to determine your E-2 visa eligibility, collect all necessary documents, prepare the entire application, and submit it to the proper agencies.  Contact our office to schedule your consultation with our DC E-2 visa attorney today.

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