E-2 Treaty Investor visas are available to persons entering the US  “solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital.”  E-2 non-immigrant visas are available to foreign-owned businesses if the home country of the E-2 Treaty Investor Visa business owner has a treaty with the US that allows American businesses to operate in that home country.

Employees of the enterprise who are working in management are eligible for the visa.  Some of the most important requirements for an E-2 visa include the following:

• The investment must be active, not passive.  This means that the money invested must be used to produce a real commodity or service. 
• The investment must be substantial.  While “substantial” is not defined by any particular dollar amount, the general rule for new businesses is that the investment be of an amount normally considered necessary to establish a viable enterprise of the type contemplated.  For an existing business, the investment must be proportional to the total value of the particular enterprise in question.  A good rule-of-thumb is as follows:
• If the value of the business or the cost to start it is less than $500,000, a minimum 75% investment is required.
• If the value of the business or the cost to start it is between $500,000 and $ 3 million, a minimum 50% investment is required.
• If the value of the business or the cost to start it is over $3 million, a minimum 30% investment is required.
• The investment must be such so as to place the investor personally at risk in the event of business failure. 
• Examples of such investments are
1. loans secured by the investor’s own assets
2. unsecured loans granted on the basis of the investor’s signature
3. cash reserves placed in a business account at the disposal of the business for purchase of equipment, property, or start-up inventory (although cash reserves alone without evidence that the business has been started will satisfy the requirement of an active investment)
4. value of purchased equipment and property
• Examples of non-qualifying investments are
1. mortgage debt or other loans secured by the enterprise’s assets
2. loans for which the lender has recourse against a guarantor
3. cash not held in reserve by the corporation, such as cash held in personal bank accounts
4. rental payments, inventory purchases, and other recurring costs beyond the start-up of the enterprise (such costs are assumed to be paid out of income generated by the enterprise and are not a part of the investment attributable to the investor)
• The investment cannot be marginal. In other words, the investment must generate more funds than just enough for the owner and his family to make a living, and should result in the creation of jobs for others.
• The E-2 visa applicant must have nonimmigrant intent – that is, they must intend to depart the US after their authorized period of stay is over.  However, unlike other most other nonimmigrant visa categories, this requirement can be met if the alien simply provides the consulate with a statement indicating non-immigrant intent.

Applications for E-2 visas are made directly to the consulate and not through the INS unless the applicant is in the US in another visa status and seeks to change to an E-2 visa.  Each consulate has its own version of an E visa questionnaire form and most require extensive documentation to support application.  The length of time for which the visa will be issued is determined by agreements between the US and the treaty country.  Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-2 status.  Spouses and children of E-2s are entitled to visas as well.  There are no restrictions on family members pursuing studies while in E-2 status, however.

Once the E-2 investor arrives in the U.S., and starts the planned business, the business may then sponsor the investor for immigration in the EB-1 or EB-3 category. 

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

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