New York Licensed Immigration Attorney For E-2 Investors Worldwide
An E-2 Visa allows non-immigrant treaty investors to enter the United States and work in the U.S. for a temporary period of time. An E-2 visa is granted for a specific period of validity based on the treaty country, and it can be single entry or multi-entry.
When you enter the U.S. on an E-2 Visa you will be granted status to remain for up to two years. With a multi-entry Visa you can enter and leave as long as your Visa is valid each time you enter the U.S. you are given up to two years to remain.
An E-2 visa can generally be renewed provided business is operational, and E-2 investor still has intent to remain in the U.S. temporarily, leaving when E-2 status ends.
Main requirements:
- A treaty must exist between the United States and the foreign country under whose treaty the E-2 status is sought. Check to see if your country of citizenship qualifies here: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
- Majority ownership or control of the investing or trading company must be held by nationals of the foreign country under whose treaty the E-2 status is sought.
- Foreign country citizenship of the country under whose treaty the status is sought must be held by each employee or principal of the company who is seeking the E-2 status pursuant to the treaty.
- Active Investment: A qualifying investment must be “active” – this means the business enterprise must represent a real operating enterprise productive of some service or commodity. Speculative or idle investment does not qualify, however, in limited circumstances the business can be nearly active or being held in trust pursuant to approval although this is not generally acceptable and has more likelihood of denial.Uncommitted funds in a bank account or similar security are not considered an investment. Moreover, this investment must be irrevocable.Please remember passive investment doesn’t count. For example, an investment in land would not qualify since it would be considered as passive investment. However, if the investment was accompanied by submission of development plans to authorities and contracts for building, it would be active investment. It is acceptable to use an escrow account to protect the investor in the event the visa is denied. However, the investor must present other evidence showing the investment will be active. In addition, the investor cannot just invest the capital and not take part in the actual managing or directing of the business. The investor must manage the business and must exercise a controlling interest in the business.
- Substantial investment: The investment must be substantial, taking into consideration only those financial transactions in which the investor’s own resources are placed “at risk”.An investment must be at risk, this means that it must be subjected to a partial or total loss if investment fortunes reverse in a way that will impact the E-2 investor.There is no minimum dollar amount necessary in order for the investment to be considered substantial. However, in order for an investment to be considered substantial by the USCIS, it must meet one of two tests:(1) It has to be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses); or(2) It has to be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses).
In addition, generally the larger the total value of the enterprise or the cost to start up the enterprise, the smaller the percentage of the total investment the investor must put up to meet the substantiality requirement.
- Funds must be from a legal source, and verifiable. All sources of funds must be provided with a trace to demonstrate it is a legal source, regardless of where they are from. (Gift, Loan, Sale of Property, Savings, etc…) Additionally, funds must be in the control of the individual seeking E-2 status.
- Investment cannot be marginal. An investment is marginal if it does not have the present or future capacity to generate more than a minimal living for the investor and his or her family. Investment cannot be solely to earn a living for the investor and his family.Factors to determine whether investment is marginal:
(1) Creation of jobs: The investment cannot only support the investor and his or her family; in almost all cases it should create job opportunities for U.S. workers as well;(2) Income for investor: Investment will generate income substantially above requirements for family of investor; and(3) Essential Role in Enterprise: The person for whom E-2 status is sought must fill a key role with the company, either as the investor who will develop and direct the investment or as a qualified employee necessary for the development of the investment. Investor will not work simply as a skilled or unskilled worker.
Other considerations:
- E-2 investor may only work for the business enterprise E-2 Visa is granted.
- Spouse and Unmarried Children under age 21of E-2 investor may join investor in the U.S., Spouses should now be given the E2-S Class of Admission Code which gives them permission to work.
- However, children may not work (even for spouse’s E-2 investment business enterprise) unless they apply for Work Authorization after arriving in the U.S. However, they may live here and attend school.
- If you are currently in the U.S. under another valid non-immigrant visa status (not applicable to ESTA visitors), you may be able to change status to an E-2 without leaving the U.S., please note, the fees stated herein do not apply in this situation and are different.
- The fees to apply for an E-2 Visa vary based on country of citizenship of the foreign investor, but generally range from $205.00 to $300.00, plus reciprocity Visa issuing fees if applicable.
- Investment may be a purchase of an existing business, a start-up, or purchase of more than 50% an existing business that will otherwise qualify as above indicated – remember cannot be passive.
