E-2 Investor Visa Information
The E-2 Treaty Investor Visa is a nonimmigrant visa which permits an alien to live and work in the U.S. for a limited time. The visa is usually issued for 2-5 years at first, and can be renewed thereafter in 5 year increments. There is no limit to the number of renewals that are permitted, as long as the applicant continues to qualify for the visa.
Requirements: To qualify for E-2 Visa, an applicant must meet all of the following:
- 1. There must be an investment treaty between the U.S. and investor’s country of citizenship;
The U.S. has investment treaties with most countries in Western Europe, but only some of the countries in Eastern Europe, Asia, Africa and Latin America. Some treaties have unique rules, such as the treaty with the U.K., which requires visa applicants to be residents of the British Isles, or the treaty with Switzerland, which permits visas to be issues only four years at a time (rather than the usual five years). We can provide information about your country upon request.
- 2. The U.S. investment must be at least 50% owned by persons who come from the treaty country and the applicant must come from the treaty country.
The applicant can be the investor (owner of at least 50% of the business), an executive or supervisory employee from the same country as the investor, or an employee with essential skills from the same country as the investor. In many cases, several workers can come to the U.S. based on a single investment. For example, the Italian owner of at least 50% of an Italian restaurant in the U.S. can qualify for an E-2 Visa as the investor. A prospective employee with essential skills (such as a chef) and/or a supervisor (management-level) employee from Italy could also qualify for E-2 Visas to work in the same Italian restaurant. All applicants may bring their spouses and children under 21. Spouses (not children) can obtain employment authorization cards once they enter the U.S. with their E-2 visa.
- 3. The investor must make and investment or be actively in the process of investing before submitting the visa application;
Generally, the investor has to make the investment first and apply for the visa second.
There is one exception to this rule: if the investor is purchasing an existing business, then investor can make a contract to purchase the business, which is contingent upon approval of the visa application. This means that the purchase is completed only after the visa is approved. However, to ensure that the purchase is actually completed, the government requires that the investor transfer the purchase funds to the U.S. and deposit the funds in an attorney trust account or escrow account prior to making the visa application. Once the visa is approved, the funds should be paid directly to the seller of the business.
The investment can consist of money or other assets that have a value. We have obtained E-2 Visas for applicants whose “investments” consisted of the following: art work, antiques transferred to the U.S., websites, investment or development rights, patents, goods or equipment produced outside of the U.S. and transferred here, etc.
The investor has to provide documents that show the source of his or her investment funds, such as: contracts for sale of foreign property, wire transfer documents, foreign and U.S. bank records, shipping documents for equipment sent to the U.S., loan documents or a letter confirming that the investor received the funds as a gift.
- 4. The U.S. business must be a real and operating commercial enterprise;
The U.S. business must sell goods or services with the goal of earning a profit. The investment cannot be passive, such as owning vacant land without plans for developing it.
In some cases, owning and renting real estate can be viewed as a passive investment. To avoid problems, we suggest a business activity that requires more involvement by the applicant—such as land development, real estate rentals plus some other activity (consulting can sometimes work as an additional activity, but not always), short term vacation rentals, or property renovations.
Applicants have to provide evidence that the business is active, such as: a lease or deed for business premises, photographs, permits, licenses, tax returns or other financial documents, business contracts, and employee tax records. First-time visa applicants must provide a business plan with financial projections. The projections should cover five years and should show the business will eventually earn a profit exceeding a minimal living for the applicant.
- 5. The investment must be “substantial”;
There is no minimum amount that must be invested. Investors purchasing an existing business should show that they have invested at least 50% of the total cost of the business. Investors creating a new business must show that they have invested enough money or other assets for the business to operate.
Loans that are secured by the investment assets can be a problem. For example, if an applicant buys a convenience store and pays $25,000 cash and takes a bank loan for $250,000. There would be a problem if the bank loan was secured by the convenience store. There would not be a problem if the bank loan is secured by the investor’s house, which is unrelated to the business.
- 6. The investment cannot be a “marginal” business solely for earning a living;
The investment business must benefit the U.S. economy and not just earn money for the investor. To show this, the applicant must show that, within five years, the business will earn more than enough income to provide a minimal living for the investor or that the business will make a significant economic contribution by creating employment for U.S. workers.
To determine whether a business is marginal, first, look at company tax return (under the present or former owner of the business). See whether the business paid the owner a salary and still earned a profit. Second, look at the tax return to see if the business paid salaries to employees. If yes, this information can be used to show that the business is not marginal. If no, then the applicant must use a business plan, financial projections, and other information to show that the business will pay the owner a salary and will earn a profit (and, hopefully, will have employees) within the next five years.
In some cases, an applicant can also use documents to show that the business indirectly creates employment, for example, proof of payment to independent subcontractors.
- 7. Applicant is in a position to "develop and direct" the enterprise;
If the applicant is the investor, then he or she must show a controlling interest in the U.S. business via ownership interest and management position. Generally, the applicant must own at least 50% of the business to qualify as the investor. He or she must also provide information about management qualifications.
- 8. Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United States;
If the applicant is an employee who comes from the same country as the investor, then the applicant must show that he or she will perform an executive/supervisory (management-level) job or a job that requires essential skills. The applicant must provide a resume and other documents to show that he or she is qualified to do the job. The applicant should be paid a salary by the investor.
If an applicant owns less than 50% of the business, he may qualify as an executive/supervisory employee (rather than as an investor) if the business is owned at least 50% by investors from the same country. For example, if three brothers from Germany each own 33.3% of a business, no one qualifies as the investor, because no one owns 50%. However, one brother could possibly qualify for an E-2 Visa as an executive/supervisory employee.
- 9. Applicant intends to depart the United States when the E-2 status terminates.
All applicants (excluding children under 16) must sign a Statement of Intent to Depart U.S. upon Expiration of Nonimmigrant Status. This document confirms that the applicant intends to leave the U.S., if his or her E-2 Visa expires or becomes invalid.
If you are interested in applying for an E-2 Visa, we suggest the following:
First, find out whether there is a treaty between the U.S. and your country of citizenship.
Next, decide whether you will purchase an existing business or create a new business.
If you want to purchase an existing business, we suggest that you contact several business brokers in the area that you want to invest in. Normally, the seller of the business pays the fee of the business broker, not you. If you find a business you like, you should have a tax advisor and/or business lawyer review the business to determine suitability for investment. You should have an immigration lawyer review the business to determine the suitability for visa issuance.
The immigration lawyer and your other advisors can help you structure a deal that will maximize the chances of making a successful visa application.
Application procedures:
Normally, E-2 Visa applications are made at the U.S. consulate located in the applicant’s home country. Each consulate has its own rules for submitting the applications. Processing times usually are between eight and twelve weeks, though some consulates are faster. Before the visa is issued, the applicant and any family members over the age of 16 will have to attend a brief interview at the consulate for security purposes. All applicants (including children) must have their own passport, which must be valid for at least six months into the future.
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