Investor Visa E-2

The E-2 visa was created to allow foreign investors come to the U.S. on a temporary basis. This particular visa applies specifically to investors from countries which have international treaty agreements (Bilateral Investment Treaties, NAFTA, etc.) with the U.S., and who are interested in coming stateside to invest in a business.[1] This page was designed to help foreign nationals decide if they might be eligible for an Investor Visa E-2 and to help them decide if they should consult with an immigration attorney.

The following topics are covered on this page:

  • Investor Visa E-2 Basics
  • Investor Visa E-2 Eligibility
  • Applying for an Investor Visa E-2
  • Can My Family Join Me?
  • Do I Need an Attorney?

It is important to remember that while this page discusses certain legal concepts, it is not intended as a substitute for speaking directly with an experienced immigration lawyer. Immigration law is complex and involves multiple federal agencies and officers. The process of applying for a visa can be daunting, even for a savvy business investor.

In many cases, an experienced attorney can help a client avoid costly and time-consuming mistakes that could result in disqualification. To find out if an attorney can help you, contact our office for more information.

Investor Visa E-2 | Orange County Immigration Lawyer

Investor Visa E-2 Basics

While the E-2  shares much in common with another investor visa, the EB-5 visa, it differs in several key ways. Perhaps most significant, the Investor Visa E-2 is intended for foreign nationals who wish to come to the U.S. on a temporary basis. Because of its temporary status, the US Department of State issues more E-2s than EB-5s each year.

The Investor Visa E-2 is issued under any number of international treaties established between the U.S. and foreign countries. For this reason, E-2 holders are sometimes referred to as “treaty investors.”

While many people are familiar the North American Free Trade Act (NAFTA) — established between the U.S., Canada and Mexico — the U.S. is party to several other international commerce treaties as well. The list of countries that have such agreements with the U.S. is substantial and includes: Argentina, Bulgaria, Denmark, Liberia, Pakistan, the Philippines, Thailand, Ukraine and the United Kingdom, among others.

In the case of NAFTA, which went into effect in 1994 under the Clinton administration, tariffs were eliminated on goods moving between the three countries in an effort to make trade easier. The new law provided more freedom to foreign entrepreneurs, managers and workers to live and work temporarily in one of the three countries while conducting business.

In order to qualify for an Investor Visa E-2, a foreign national must be a native of a treaty country, and intend his or her stay to be temporary. They also must clearly intend to make a substantial investment in a U.S. business. The amount of time an E-2 visitor is authorized to stay in the country is two years. However, extensions may be granted in two-year increments for an indefinite period.

It is important to remember that exceptions apply to the rules and regulations surrounding Investor Visas E-2, and the list of countries with treaties with U.S. treaties is too vast to detail on this page.  If you believe you might be eligible under a different treaty than NAFTA, or have general questions about the E-2 visa, contact our office to see if we can help.

Investor Visa E-2 Eligibility

The eligible applicant must be from a recognized treaty country and entering the U.S. to invest a substantial amount of money in a business. Several qualifying criteria pertaining to the funds apply. For instance, the funding cannot come from an unsecured loan, but rather must be backed by collateral from the investor’s personal assets.[2]

In order to qualify as a substantial investment, the funds must be of such a magnitude that there’s a likelihood the foreign investor will successfully develop and direct the enterprise.

The foreign investor must also be committed to the investment at the time of application in order to qualify for a visa — uncommitted funds in a bank account are not sufficient to secure an Investor Visa E-2. This commitment can be demonstrated by a purchase of sale, with funds being held in escrow. The applicant must also be nearing the start of business operations at the time of application.

Although personal inheritance can be used toward establishing an E-2 business, inheriting a business does not count as an investment. The business cannot be established merely so that the investor and his or her family can earn a living.  Projected capacity of the business should be realizable within five years, and the investor may be required to produce a five-year business plan.

When evaluating an application for an E-2 visa, the U.S. Department of State will weigh the proportion of the investment being made. In other words, if the cost to establish the business is relatively low, then the foreign investor must be responsible for a large portion of the investment. For example, in the case of a business that only costs $100,000 to establish, the applicant could be required to make an investment of 100 percent in order to qualify.

However, in the case of a $100 million enterprise, a proportionally low investment of $10 million could qualify because of the large amount of money involved.

There are also situations that can lead to a denial of an Investor Visa E-2 application. For instance, funds obtained directly or indirectly through criminal activity will not qualify for an E-2 investment. The investment must also be commercial in nature, which excludes nonprofit entities such as schools and associations.

Applying for an Investor E-2 Visa

If a foreign investor is living inside the U.S. under lawful nonimmigrant status, they are eligible to apply for an E-2 visa by filing a Petition for Nonimmigrant Worker (Form I-129). If the investor is working legally as an employee for a U.S. firm, the employer can file the petition on the foreign investor’s behalf. The form is filed through U.S. Customs and Immigrant Services (USCIS).

Foreign investors who are physically outside of the U.S. when they apply for an E-2 visa must go to a U.S. consulate or embassy in their home country. The form used to begin the application process in this case is a Nonimmigrant Visa Application (Form DS-160).

Once approved, the applicant may be required to submit to an interview with a consular officer. Because each application differs from person to person, the materials an applicant is required to bring to their interview may differ as well.

The required materials could include: tax valuation and market appraisal, personal statement of net worth prepared by a certified accountant, loan documents, escrow receipt, voided investment certificates, closing and settlement papers, as well as audited financial statements.

Consulate officials consider a number of different factors when deciding whether or not to issue a visa. To find out if an experienced attorney can help in your specific case, contact our office for more information.

Can My Family Join Me?

Generally speaking, yes. Spouses and unmarried children (under the age of 21) are eligible to accompany the E-2 visa recipient. The eligible spouse is not required to be from a treaty country, and they can apply for employment authorization while staying in the U.S. While children of E-2 holders typically cannot apply for employment authorization, they can attend school.

Do I need an Attorney?

Foreign nationals seeking an E-2 visa are not required to retain the services of an immigration attorney during the application process. However, applying for a visa can be complex and daunting. Even savvy business investors can benefit from the services of an experienced lawyer. Mistakes made by visa applicants can cause delays, and in some cases, even lead to disqualification.

A good attorney will help a client avoid costly mistakes and will assess the specific situation to determine which type of visa provides the best path of admission into the U.S. To find out how an immigration lawyer can help you, contact our office for more information.

Footnotes:

[1] INA §101(a)(15)(E)

[2] Nice v. Turnage, (9th Cir. 1985)