Our law firm located in Orlando, Florida represent countless nationals with E2 visa applications at various U.S. Consulates in the world. The E2 Visa is a nonimmigrant visa allowing individual investors along with their spouse and unmarried children under 21 years old to enter the U.S. for the purpose of developing and directing their company via the creation or purchase of a business in the U.S.
Alternatively, the investor can be an overseas company, also a national of a treaty country, via which a foreign national can come as an essential employee to work for its U.S. subsidiary, affiliate or parent company.
E2 Visa Eligibility
To be eligible for an E2 visa, the investor must:
1. Be a national of a country that maintains a treaty of commerce with the United States
The individual E2 visa investor must have citizenship to that country and need not necessarily reside in that country (the requirement varies depending on which U.S. Consulate the E2 visa is applied for). The nationality of the U.S. business will be determined by the nationality of its owners, individuals or entities, who must hold at least 50% or more of the company shares or interest. For a list of treaty countries, please visit the Department of State website.
2. Have invested or actively be in the process of investing
The E2 visa investor must have invested enough funds in the enterprise such that it is close to the start of the business operations. For example, merely transferring funds into a business bank account will not qualify as an investment (but for a minimal amount for operating expenses)
3. Invest a substantial amount in a U.S. enterprise
What is considered substantial varies greatly amongst U.S. Consulates as well as USCIS. The regulations do not set a minimum dollar figure, however the amount must be proportionate to the cost and nature of the business, as well as sufficient to ensure the success of the business.
For example, our law firm has successfully represented clients with E2 visa applications who were close to the start of their operations with investments of $50,000 or less. The U.S. consular or USCIS officers will look for payment of lease or rent, invoices, contracts, payment for services, stocks, purchase of material and equipment, etc…as proof of investment.
When applying the proportionality test by assessing the percentage of the investment in relation to the cost (value) of the business, the officers will deem that the lower the cost of the business, the higher the investment should be, as close as 100 percent as possible.
4. Invest in a real and operating commercial enterprise
The investment for an E2 visa can consist of creating a new business, or buying an existing one, which could also be a franchise. Generally, a company such as a Limited Liability Company, Corporation, or Partnership will be created to operate the newly acquired business. In either case, the enterprise must be an actual business and for profit, generating income and creating employment for the U.S. workforce.
5. Enter the U.S. to develop and direct investments from the treaty country and develop and direct the operations of an enterprise
The investor, individual or foreign corporation, must own at least 50% of the shares of the company it wishes to develop and prove that control exists over the decisions of the company. If the ownership is greater than 50%, then generally the investor will meet the requirement. However, when the shares are divided between two individuals at 50/50 in a joint venture, the investor must prove equal managerial control over the company, i.e. negative control, allowing the investor to make decisions that are binding on the other party.
6. The business must not be marginal
A business is marginal when it does not have the sufficient capacity to generate enough income to provide a minimal living for the treaty investor and his family.
The investor will generally have to prove that within 5 years of the commencement of the activity, the business will have the capacity to make a significant economic contribution. This means that it should create a minimum of 2 to 3 jobs for U.S. citizens or other qualified workers and generate sufficient income to provide for the treaty investor and his family.
7. Be in possession of the funds which will be invested and the funds must be committed to the business
Being in possession of the funds to be invested will mean providing the legitimate source of funding for the amount invested, such as sale of real property, a business, gift, loan, inheritance or savings. The funds must generally transit through the investor before they are invested in the U.S. enterprise. Only funds which are placed at risk, where personal assets are involved, can be considered for investment purposes. This can include personal funds, other unencumbered assets or mortgage where the personal dwelling is used as collateral, or other personal liability.
The commitment of the funds to the business is generally proven through documentation of the investment already made or to be made, as well as asset purchase agreement containing a contingency clause. Note that the investor can purchase an existing business but still place the monies in an escrow account pending the issuance of the E2 visa or approval of change to E-2 status. That way, the investor is placing the funds at risk if business fortune reverses as the monies are disbursed to the seller once the E2 visa is issued.
8. Must intend to depart the United States upon expiration of the visa
The investor does not need to prove intent to come to the United States for only a temporary period, or keep a residence abroad. The expression of an unequivocal intent to return when the E status expires is sufficient unless the investor states otherwise. Thus one must still be careful as to what is said during the interview process at a U.S. Consulate or if an immigrant petitions has been filed on his or her behalf prior to applying for the E2 visa or change of status.
Application for E1 visa/E2 visa
The E visa is generally applied for at the U.S. Consulate of the country of nationality or residence of the applicant. Alternatively, one can apply for a change of status in the United States with USCIS.
Consular application v. change of status?
The application for E1 or E2 visa at a U.S. Consulate is often recommended over the latter since a USCIS approval of change of status to E is only granted for a period of two years and is not valid for travel outside of the United States. If one must travel outside of the U.S. subsequent to a USCIS approval, he or she must obtain a visa at the U.S. Consulate in the country of nationality or residence prior to proceeding back to the U.S. The E visa category is very different than any other type of visa however in that the U.S. Consulate will not issue an E2 visa based on the USCIS approval of E status, but rather, will adjudicate the visa application based on its own merits. Thus, the visa applicant must present a brand new visa package demonstrating that he or she meets the requirements under the law.
There are instances however where a change of status will be more appropriate and the decision always lie with the visa applicant. Further, note that even though the visa applicant may be issued a visa for a maximum period of time, for example, of five (5) years, the authorization of stay into the U.S. will only be valid for two years, such that the E2 visa holder will have to depart the U.S. prior to the expiration of his or her I-94 status and come back to obtain a new two year authorization of stay on E-2 status. Such must be done until the E2 visa is close to expiration
When granted, the foreign national can freely work for the newly formed or existing company, or for himself in case of a sole proprietorship. There are no limitations on the number of renewals under this visa status, the main requirement being that an application must be submitted for renewal (either with the U.S. Consulate of the country of nationality of residence, or through an extension or change of status with USCIS) prior to expiration of the visa status. The adjudicating officer will look for several factors such as whether the company is profitable, is not marginal, and hires American employees, permanent residents or individuals holding a work visa or employment authorization.
A spouse and children of an E2 visa holder can also obtain dependent E visas which allows the spouse to apply and receive employment authorization and the children to attend school.