E2 Visa Lawyer
The E-2 Visa allows foreign nationals from treaty countries to live and work in the United States by investing and directing the operations of a U.S.-based business. To qualify, the applicant must be a citizen of a country that maintains a qualifying treaty of commerce and navigation with the U.S. While there is no fixed minimum investment amount, the investment must be substantial and sufficient to support the successful operation of the business.
What is an E2 Visa?
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 United States. In addition, certain employees of a qualifying organization may also be eligible for this classification.
What are the Requirements For an E-2 Visa?
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 are actively in the process of investing a substantial amount of capital in a new or existing U.S. business; and
- Be seeking to enter the U.S. solely to develop and direct the investment enterprise, a real, active commercial undertaking that 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 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 the 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 investors 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. Therefore, a major requirement for a successful E-2 application is documenting the business’s plans to hire U.S. workers and generate substantial revenues.
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 that primarily provide the employee with ultimate control and responsibility for the organization’s overall operation, or a major component of it.
Special qualifications are skills that 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.
What is the Petition Process For an E-2 Visa?
The attorneys at Berardi Immigration Law work closely with the E-2 visa applicant to assemble the application, prepare all forms, 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.
What is the Period of Stay For an E-2 Visa?
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 per entry. Following the 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.
Dependents of E-2 Visa Holders
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 immediately eligible to work following entry to the U.S.
Why Work With a Berardi E-2 Visa Lawyer?
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 immigration attorneys has access to a network of resources that allows 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. We have successfully prepared E-2 visas for a variety of businesses, including everything from a pool company, to a yoga studio to an Asian restaurant, to a golf architect company, and a media company. The possibilities are endless, and our clients love obtaining a five-year work visa. Contact our office today and schedule a consultation.
E-2 Treaty Investor Visa: Frequently Asked Questions
What is an E-2 Treaty Investor Visa?
An E-2 visa is a nonimmigrant visa category for nationals of countries that maintain a qualifying treaty of commerce and navigation with the United States. It allows the visa holder to enter the U.S. to direct and develop the operations of a business in which they have made a substantial, at-risk investment.
Who is eligible for an E-2 visa?
Eligibility generally requires that the applicant be a national of an E-2 treaty country, that the enterprise have the nationality of that treaty country, and that the applicant has invested or is actively in the process of investing a substantial amount of capital in the enterprise. A principal investor must be coming to the United States to develop and direct the enterprise. Qualifying employees may instead work in executive, supervisory, or essential-skills positions.
What countries qualify for E-2 treaty investor status?
Only nationals of countries that have a qualifying treaty of commerce and navigation with the United States are eligible. The list of treaty countries varies and is maintained by the U.S. Department of State, so applicants should confirm their country’s current treaty status before applying.
How much money do I need to invest for an E-2 visa?
There is no fixed statutory minimum investment amount. Instead, the investment must be “substantial” relative to the total cost of establishing or purchasing the particular business; often assessed on a proportionality scale, where smaller businesses require a higher percentage of investment relative to total cost. The appropriate investment amount depends on the actual cost and nature of the business. A lower-cost service business may qualify with a smaller investment if the investor has committed a sufficiently high proportion of the funds needed to establish and operate the enterprise.
Does the investment need to be “at risk”?
Yes. The funds must be irrevocably committed to the enterprise and subject to partial or total loss if the business fails. Simply holding funds in a personal account or an uncommitted business plan does not satisfy this requirement.
Where can the investment funds come from?
Investment funds may come from personal savings, gifts, inheritance, the sale of assets, lawful earnings, or loan proceeds. Loan proceeds may qualify when the investor is personally liable for the debt or the loan is secured by the investor’s personal assets. Debt secured by the assets of the E-2 enterprise generally does not qualify as the investor’s personal capital at risk.
What ownership requirements apply to an E-2 business?
At least 50% of the enterprise must be owned by nationals of the treaty country who maintain that country’s nationality. Ownership can be traced through individuals, partnerships, or publicly traded companies, provided the treaty-national ownership threshold is met.
Can I buy an existing business for my E-2 visa, or does it need to be a startup?
Either can qualify. Applicants may start a new business or purchase an existing one, as long as the enterprise is a real, active, operating commercial business, not a passive investment like undeveloped land or stocks held purely for appreciation.
What positions qualify for E-2 status?
A principal E-2 investor must be coming to the United States to develop and direct the enterprise. Separate E-2 employees may qualify if they will serve in an executive or supervisory capacity or possess skills that are essential to the enterprise’s operations. Routine or ordinary skilled positions generally do not qualify under the essential-employee standard.
How long does an E-2 visa last?
E-2 visa validity depends on the applicant’s nationality and the applicable Department of State reciprocity schedule. Depending on the country, an E-2 visa may be issued for a single entry or multiple entries and for a validity period ranging from several months to several years. A person admitted in E-2 status is generally granted a period of stay of up to two years at each admission.
Can an E-2 visa be renewed or extended?
Yes. There is no maximum limit on the number of extensions an E-2 visa holder can request, provided the underlying business and the individual’s role continue to meet E-2 requirements at each renewal.
Does the E-2 visa allow dual intent?
The E-2 visa is not formally classified as a dual-intent visa. An applicant must intend to depart the United States when E-2 status ends. However, the existence of a potential long-term immigration plan does not necessarily preclude E-2 eligibility. We recommend consulting with an experiences immigration attorney.
Can my spouse and children accompany me on an E-2 visa?
Yes. Spouses and unmarried children under 21 may accompany or follow to join the principal E-2 visa holder. Qualifying E-2 spouses are generally employment authorized incident to status and do not need to obtain a separate Employment Authorization Document before working. Their Form I-94 should reflect the E-2S classification. Dependent children are not authorized to work based solely on E-2 dependent status.
How is the E-2 visa different from the E-1 visa?
The E-2 visa is based on a substantial investment in a U.S. business, while the E-1 visa is based on substantial trade between the U.S. and a treaty country. Some treaty countries qualify for both categories, while others qualify for only one, so eligibility should be confirmed based on the applicant’s specific business activity.
How is the E-2 visa different from the EB-5 program?
The E-2 visa is a nonimmigrant category limited to treaty-country nationals and does not directly lead to a green card, while the EB-5 program is an immigrant investor category open to nationals of any country and leads directly to permanent residence, typically requiring a substantially higher investment and job-creation showing.
What documents are required for an E-2 visa application?
Typical requirements include evidence of the applicant’s treaty-country nationality, documentation establishing majority treaty-national ownership of the business, proof that investment funds were lawfully obtained and are at risk, a detailed business plan showing the enterprise is more than marginal, and standard visa application forms such as the DS-160 and, where applicable, Form I-129 for E-2 classification filed with USCIS.
What are common reasons an E-2 visa application is denied?
Common grounds for denial include an investment that is not sufficiently committed or at risk; an investment that is not substantial in relation to the cost of the business; failure to demonstrate that the enterprise is real and operating or will become operational imminently; insufficient evidence that the enterprise has the present or future capacity to generate more than a minimal living for the investor and family or otherwise make a significant economic contribution; unclear treaty-country ownership; and failure to establish that the applicant will develop and direct the enterprise or serve in a qualifying employee position.
Can an E-2 visa lead to a green card?
The E-2 visa itself does not directly convert to permanent residence, but E-2 status does not require abandoning long-term U.S. plans. Investors interested in a long-term path should discuss options such as EB-5 or employment-based green card categories with an experienced immigration attorney.
How far in advance should I apply for an E-2 visa?
Because E-2 applications require substantial documentation of the investment, business plan, and ownership structure, applicants are encouraged to begin preparing several months before their intended travel or start date to allow time for gathering evidence, consular scheduling, and any USCIS processing.
