The E-2 Treaty Investor visa exists for citizens of countries that maintain a treaty of commerce and navigation with the United States. It enables an individual to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. A major benefit of this classification is that it can be utilized by foreign nationals to establish and open a business in the States. In addition, certain employees of such a person or of a qualifying organization may also be eligible for this classification.
The first step in the application process is determining eligibility. To qualify for E-2 status, the treaty investor (whether a business or individual) must:
- Be a national of a country with which the U.S. maintains a treaty of commerce and navigation;
- Have invested or is actively in the process of investing a substantial amount of capital in a new or existing U.S. business;
- Be seeking to enter the U.S. solely to develop and direct the investment enterprise, a real, active commercial undertaking which produces services or goods for profit.
Nationality and Ownership
A treaty investor, whether an individual or business, must possess the nationality of the treaty country. Determining the nationality of an individual applicant is easy – present a copy of the applicant’s passport showing that he or she is a national of a treaty country.
Determining the nationality of an E-2 company is determined by the nationality of the individual owners comprising that business. At least 50 percent of the business in question must be owned by nationals of the treaty country. In a corporate structure, the government generally looks to the nationality of the owners of the stock. If a business in turn owns another business, then nationality of ownership is traced back to the parent organization.
Investing a Substantial Amount of Capital
For E-2 purposes, an investment is the placement of the investor’s capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The investor must have full control over the investment funds, and the capital must be subject to partial or total loss and irrevocably committed to an enterprise.
U.S. immigration regulations do not establish a minimum dollar amount for E-2 purposes that directs the dollar amount necessary in order for the investment to be considered substantial. For E-2 purposes, however, a substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one;
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
- 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.
In addition, the investment must not be marginal – that is, the business must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An applicant is not entitled to E-2 classification if the investment, even if substantial, will return only enough income to provide a living for the applicant and family.
Essential Role in the U.S.: Investor & Employees
A principal investor or certain employees can obtain treaty-investor status. In order to enter the U.S. in this status, the principal investor must be responsible for the development and direction of the investment.
If a foreign national employee has the same citizenship as the owner(s) of the E-2 enterprise, that applicant may also qualify for an E-visa. The job the employee will perform must be executive or supervisory in nature, or the employee must possess special qualifications that are essential to the operation of the U.S. enterprise.
“Executive” or “supervisory” job duties are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.
“Special qualifications” are skills which make the employee’s services essential to the efficient operation of the business. These include, but are not limited to:
- The degree of proven expertise in the employee’s area of operations;
- Whether others possess the employee’s specific skills;
- The salary that the special qualifications can command;
- Whether the skills and qualifications are readily available in the United States.
The attorneys at Berardi Immigration Law works closely with the E-2 visa applicant to assemble the application and draft a detailed Letter of Support. Once the application is finalized, the petition is typically sent electronically to the Consulate or Embassy with jurisdiction over the application. (Processing times for the Consular review of the E-2 visa application vary depending on the location.) The applicant must then attend an in-person E-2 visa interview. Upon approval, the applicant’s passport is generally returned within 3-5 business days with the E-2 visa stamped inside.
Period of Stay
The visa validity length for the E-2 category varies by country based on reciprocity agreements. For Canadians and most European countries, the E visa is typically issued for a five-year period and upon entering the U.S., E visa applicants are admitted for up to a two-year period of stay. Following that initial two-period, E-2 nonimmigrants generally must travel abroad and reenter the U.S., at which time they will be granted an automatic two-year period of readmission. In addition, requests for an extension of status may be granted in increments of up to five years at an embassy or two years if filing with USCIS via mail, and there is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. Keep in mind, however, that the visa can only be renewed or extended if the investment continues to meet all applicable requirements of U.S. immigration laws and regulations.
The spouse and unmarried children (under 21 years of age) of the primary E-2 applicant may also accompany or follow the primary holder in that same status. They are not required to have the same nationality as the principal applicant. Spouses and children may attend school, and spouses are eligible to apply for work authorization in the U.S.
The Berardi Difference
Strong E-2 cases tell a compelling story – it is as much a sales pitch as it is a legal application. The government wants to see the entrepreneurial spirit of the investor along with the positive local, regional, and/or national economic impact of the investment conveyed through a business plan and represented on your visa application. Presentation is key. This mindset is how our attorneys approach each and every case. At Berardi Immigration Law, our staff of skilled attorneys have access to a network of resources that allow us to handle every aspect of your E-2 visa application. From analyzing corporate documents to coordinating with professional business plan writers, our team will guide you through the entire process and bring your entrepreneurial vision to life. If you have an idea, the entrepreneurial drive to execute, and access to a modest amount of capital to invest in the U.S., you may qualify for an E-2 visa. Contact our office today and schedule a consultation.