How to Qualify for a Treaty Investor Visa (E-2)

Posted by Volha (Olga) Hirynskaya

An E-2 treaty investor visa is a NON-immigrant visa that available for foreign entrepreneurs of countries that have a treaty of trade and commerce with the United States. The E-2 investor visa allows an individual to enter and work in the U.S. based on an investment he or she will be controlling while residing in the U.S.

In this article, we are going to explain the basic E-2 visa requirement and qualifications.

E-2 visas are issued for the period of time permitted under the treaty with a particular country. The investor generally applies for a E-2 visa at a U.S. Consulate in the applicant’s country of residence. This visa must be renewed every two years, but there is no limit to how many times applicants can renew it.

If a potential investor legally entered the U.S. and has a valid status (not an E-2 visa), he/she may also apply for a change of status to an E-2 status with USCIS.  Note that this status will be lost if the potential investor-applicant travels outside the U.S.  In those cases, he/she has to apply for an E-2 visa at the U.S. Consulate again in order re-enter the United States.

An investor E-2 visa is available only to E-2 treaty countries, which include the following countries:

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Bulgaria, Cameroon, Canada, Chile, China, Colombia, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Israel, Italy, Jamaica, Japan, Kazakhstan, Korea, Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Republic of Congo, Romania, Senegal, Serbia, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, and United Kingdom.  As can be seen, this list excludes Belarus, Brazil, Russia, India, Iran, and Uzbekistan.   Please make sure to check the U.S. Citizenship and Immigration Service (USCIS) website for an updated list of treaty countries.

It is also important to note that the investor must be a citizen of qualified countries listed above in order to satisfy the E-2 visa requirements.  At the same time, the current residency in the treaty country is not required as long as the investor has a citizenship from one of the treaty countries.

Benefits of E-2 Visa are as follows:

• No annual cup or quota on the number visas.
• Smaller investment amount than EB-5 immigrant visa ($50,000 to $100,000 as opposed to $500,000 to $1 million for an EB-5 visas, depending on location).
• The investor can open a new business or buy existing business, which can be any business.
• The investor can work legally in the established company while residing in the United States.
• This visa covers the spouse and all children under 21 years. The suppose can legally work in the U.S. While in the United States, all dependents of E-2 visa holder may attend schools, colleges, universities and they do not need to apply for a separate student visa.
• A spouse of the E-2 visa holder does not have to be a citizen of a treaty country in order to have his or her visa to be approved.
• The investor may hire employees for his U.S. business from a treaty country and the employee will have the same E-2 visa status.
• An E-2 Visa can be renewed an unlimited number of times as long as the business is in good standing.
• The investor, his dependents, and the employees holding E-2 visas can travel freely in and out of the United States.

Unfortunately, the E-2 visa also has some disadvantages, including the following:

• This visa is available only for citizens from treaty countries.
• The investor and his employees on an E-2 visa are restricted to working only for the business established as part of the E-2 visa application because this business acts as their E-2 visa sponsor.
• Employees must be citizens of the same treaty country that the principal investor is citizen of.

In order to obtain this visa, a potential investor must satisfy the following E-2 Investor Visa qualification requirements:

• A person must be a citizen of a country having a qualifying investment treaty with the United States (see a list above).
• The investment must be “substantial” and must be made with personal funds (or with the loan secured by property belonging to the investor). The investment must be sufficient to establish a profitable business and must be large enough to start and operate the business in a future. There is no requirement of a specific minimum investment amount, which varies based on the type of business. Generally, the investment will not be considered substantial if it is not large enough to capitalize the venture. The USCIS uses a special scale to figure out whether the investment is substantial in proportion to the overall cost of the business.
• The investment funds must be from legitimate sources and these funds need to be irrevocably committed. This means once the investor invests the funds, he/she cannot take away the money away from the venture after the investor receives his E-2 visa. The U.S. government wants to make sure that the investor is fully committed to the business and not actually trying to get an E-2 visa to circumvent the U.S. law.
• The future business has to contribute to the local economy of the United States, which means the investor cannot invest solely for the purpose of earning a living for himself/herself and his family. Beyond paying the investor a salary, the business has to create and employ U.S. workers and produce profit.  Thus, an E-2 visa may be denied if it appears that the business investment was only created to support the investor and his family.
• The investment must be in a real operating enterprise. This means stock, bonds, other securities, undeveloped lands, and real estate cannot qualify as an investment for purposes of an E-2 visa. The investor’s business should offer some tangible goods or services. Good examples of a real operating enterprise are restaurants, barbershops, spa salons, retail stores, consulting and accounting services, construction services, etc.

While prepping application for an E-2 visa, it’s not necessary to show that the business is fully operational. However, the investor must show some operational progress toward the readiness of the business.  For example, the investor can show that he/she registered the company, opened a U.S. business bank account and transferred some funds there, made a purchase agreement with the seller of the business, if preexisting business, signed a lease agreement for the business space, prepared a business organizational chart, business plan, and obtained business licenses and certifications, if required.

In cases where the investor uses loans or financing for his business, the investor’s personal investment has to exceed the amount that he finances.  For example, where the business the investor is purchasing costs $100,000.00, but the investor paid only $30,000 to the seller as a down payment with the remaining $70,000.00 being financed by the seller, the investor will most likely not get the E-2 visa approval because the loan or financed amount is greater than the amount the investor is actually personally investing.   In order to have the E-2 visa approved, the investor has to make a down payment, which is much greater than the amount financed.

Also, although initially it is not required for the investor’s business to create jobs, after the business begins operating, the investor is expected to create new jobs and must include this goal in his business plan.

While applying for an E-2 visa, the investor and/or his employees have to show that he has enough qualification and experience to run and manage the type of business he is investing in.  This, in turn, means that the investor or his employees have to show that they play an essential role in the business.

Please contact us if you have any questions about the E-2 visa application process and to discuss your particular situation with one of our attorneys.