The E-2 “Treaty Investor” Visa

The E-2 Visa allows “treaty investors” to come and work in the United States to develop or direct a business enterprise, in which they have invested in, or that they are in the process of investing in.

Want to live in the United States? Always dreamed of starting and investing in your own business? If so, an E-2 “Treaty Investor” Visa might be the right visa to allow you to live, invest, and work in the United States.

The E-2 Visa allows “treaty investors” to come and work in the United States to develop or direct a business enterprise, in which they have invested in, or that they are in the process of investing in. The investor must be a national of a treaty country, like the E-1 Visa, and they must invest a sufficient amount of funds into the United States. If approved, you will even be able to bring some employees from your home country (assuming they also qualify), along with you. So what are the requirements for the E-2 Visa?

Well, the main requirements for the E-2 Visa are that:

  • You are a national, or your business is a national, of one of the 53 Treaty Countries (and some territories) that are eligible for this visa, (to see a full list of eligible countries and territories, please click here);
  • You make a “substantial investment” in a bona fide business;
  • You as the investor must be able to directly direct, develop, or influence the business.

 

Along with these requirements, you must also agree to depart the United States when your E-2 Visa expires or is terminated. This is because the E-2 Visa is technically a Nonimmigrant Visa; meaning it does not allow the holder to have the intent to permanently live in the United States. However, this visa is readily renewable, and you can pretty much extend it indefinitely as long as you continue to live and work in the U.S., and continue to meet the requirements for the visa. Also, you can generally extend your E-2 Visa by simply exiting the United States and then re-entering, rather than by having to file a formal application.

The business must also be at least 50% owned by nationals of one of the 53 Treaty Countries, to qualify for E-2 Visa status in the U.S. Thus, you can have other investors from the United States, and other nationalities, but you just have to make sure you continue to meet this requirement.

The “Substantial Investment” requirement is probably the most complex of the requirements discussed, so let’s look into this a little bit more:

The foreign national must have made, or be in the process of making, a substantial investment in a bona fide business. So, what counts as a “substantial investment?” The State Department has recognized that the modern business world is very complex and global, with varying types of businesses, and each business requires differing amounts of investments in order to start and maintain it.

Consular Officers in the U.S. looking at applicants for E-2 Visas are supposed to be flexible to accommodate new businesses ventures of various types and sizes.  There is no direct answer as to what constitutes substantial investment in any given case, and it largely depends on the type of business and investment. However, there are some general rules of thumb.

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Amount of Investment

While the INA (Immigration and Nationality Act) does not define the minimum amount to qualify as a “substantial investment,” the amount usually considered sufficient is between $100,000 and $250,000.  However, this number is just an average, and the actual amount required to constitute a substantial investment can significantly change based on the type of business. The investment need only be substantial, in proportion to the type of business. For example, the amount of money needed to be considered substantial for starting a highly innovative technology company, would differ from a small accounting firm or a hair salon.

 

One crucial rule found in case after case, is that the investment must make the treaty investor personally at risk for the loss, or success, of the business. This basically means that the treaty investor could lose all of their investment money if the business fails. The money invested must belong to the investor, and the investor must be liable in case of a partial or total loss.

 

A Bona Fide Business

Now let’s look at the second part of the substantial investment requirement- A “bona fide business.” A bona fide business requires that the business be legal, and that it is an operating commercial business; meaning, that the investment cannot just be in the stock of a business (if you don’t have the intent to direct or control it), and it cannot be in something like a non-profit organization. The E-2 Visa investor must develop and direct a commercial or entrepreneurial undertaking that produces a commodity or a service. It is also more difficult to obtain the E-2 Visa when the investment is one that has a pending appreciation of value, like undeveloped land with no specific plan to develop it. However, while undeveloped land (or a similar business venture), may seem like a questionable investment; if the investor is able to prove via business plans and other evidence, that prior steps have been taken to create a development plan, the undeveloped land can still be a viable investment for the E-2 Visa. In sum, the business must be able to have the potential to create a profit for the investor.

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The “Influencing the Business” Requirement

Finally, the individual must be able to directly direct, develop, or influence the business. Normally, making a substantial investment in a company would mean the individual has a say in the direction and development of an enterprise.  It is important that you, as the entrepreneur, can and do, direct or control the operations of the business. However, sometimes due to the nature of the business or the position of the individual, it is not easy to figure out if they have direct control over the business. When this is the case, often the entrepreneur will not be granted the visa or not be able to extend it. For example, in 1990 a Norwegian man was denied a formal E-2 Visa extension request, because even though he invested $150,000 in a down payment on a mobile home park, the authorities felt that the man was an unskilled worker and did not qualify for the E-2 Visa, because his janitorial services around the park did not directly influence or control the business. The INS must feel that you are in a position to direct and have influence, in the control of the company.  

Want to bring foreign employees with you on your E-2 Visa journey?

Employees of treaty investors are permitted to have an E-2 Visa also, if they are:

(1) Coming to the United States to engage in duties of an executive or supervisory character; or

(2) If employed in a lesser capacity, the employee has special qualifications or knowledge that make them essential to the efficient operation of the enterprise; and,

(3) The nationality of their employer–the investor in the business or the company, must be the same as the employee.

The USCIS judges the essential aspect of each employee (if the employee won’t be working in an executive or supervisory capacity), depending on their job description and the type of business. One crucial question often asked by Consular Officers, when deciding an employee’s eligibility for an E-2 Visa, is whether the company and owners would be able to continue to operate the company without that employee, or if they are vital to the company.

The E-2 “Treaty Investor” Visa is a great way to potentially come and live in the United States indefinitely, by starting a new company, or through your existing company; for as long as you and your company continue to meet the requirements for the E-2 Visa. Although this is not a dual-intent visa, you are generally able to leave the U.S. at the end of your visa, and renew it by coming back in, instead of having to formally re-apply. The E-2 Visa is great for individuals who want to live in the U.S. and invest in a company, but who don’t necessarily have millions to invest like the EB-5 Visa (learn more about the EB-5 Visa here). The E-2 Visa allows individuals to fulfill their dreams of both living in the United States, and starting a business, whether small or large.  As E-2 Visas are a delicate and complex legal matter involving large investments, consulting with an experienced Immigration Attorney, will generally give you the best shot at success.

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