E-2 Visas for Treaty Investors
Many foreign-born entrepreneurs can be authorized to create, invest in, and maintain businesses within the United States through the use of E-2 visas. These visas were established to encourage economic interaction between the United States and other bilateral countries.
According to the Immigration and Nationality Act, non-immigrant E-2 visas can be issued to those who develop and direct the enterprise in which they have invested. The foreign national who applies for an E-2 visa must be a national of a country with which the United States holds a treaty of commerce and navigation or a bilateral investment treaty that encompasses the E-2 visa classification.
Those applying for an E-2 visa should be ready to prove that their investment in the enterprise will benefit the job market within the United States.
Although E-2 visas do not provide U.S. Permanent Residency, they are renewable and can provide a means to live and work in the United States for an indefinite number of years.
General Requirements for Treaty Investors (E-2 Visas)
For the foreign national to qualify for an E-2 visa, the following criteria must be met:
- The treaty investor must be a citizen of a country with which the United States maintains a treaty of commerce and navigation, also known as a bilateral investment treaty.
- There must be ownership and control of the company by citizens of the treaty country. Hence, at least 50% of the commercial enterprise must be owned by a citizen, or citizens, of the treaty country who are not dual citizens of the United States or U.S. Permanent Residents.
- The investment must be substantial. It must be sufficient enough to guarantee the success of the enterprise.
- The investment must be made in a real operating enterprise. Speculative or potential investments are not legitimate.
- The investor must have control of the funds and the investor’s investment funds must be at risk of loss in the event of business failure. Loans to the business may be secured by the investor’s personal assets but not by business assets.
- The investment must not be marginal. This means that it must be substantial enough to significantly increase the profits of the enterprise and have a beneficial economic impact in the United States. In order to determine the beneficial economic impact of the entity, the E-2 visa applicant may well have to rely on future projections of potential profits or estimates based on a formal economic analysis of the actual or anticipated volume of sales and the potential amount of job creation in the United States.
Furthermore, as part of the marginality requirement, the amount of revenues and profits generated by the enterprise must be large enough to provide for the needs of more than the owner/manager and his or her immediate family. In practical terms, this means that the business must be generating enough revenue to maintain additional employees on the payroll, besides the owner/manager. Therefore, it is advisable for the E-2 enterprise to have two employees in addition to the owner/manager.
E-2 Visas for Employees
An E-2 visa can be issued to an employee who is not the owner of a foreign-owned company which serves as the treaty investor in the United States. In that case, the application for an E-2 visa must identify that employee as an executive or supervisor in the enterprise, or as having a highly specialized skill needed by the enterprise.
What Constitutes a Substantial Investment for an E-2 Visa?
There is no specific amount of investment referenced in the applicable federal regulations as being legally required to qualify for the E-2 investor’s visa. Nevertheless, to help ensure the approval of the application for the visa, a minimum investment of $100,000 is recommended.
In addition, the investment must satisfy the “proportionality test” which compares the proposed investment amount with the cost of the established business or with the cost required in order to establish a particular type of business, which may require a higher amount than $100,000. It is necessary that the level of investment by the foreign national(s) from the treaty country be such that the foreign national(s) own(s) not less than 50% of the invested enterprise.
Duration and Renewal of E-2 Visas and E-2 Status
E-2 visas can be issued for up to a 5-year period, depending on the terms of the bilateral investment treaty between the United States and the country of citizenship of the treaty investor, and as reflected in the U.S. Department of State’s reciprocity tables with regard to the country of citizenship of the E-2 visa applicant. The E-2 visa is an entry document in the foreign national’s passport, permitting the visa holder to apply for admission into the United States. Each entry into the United States is for a maximum period of admission of two years in the United States in E-2 status.
Persons in E-2 status are eligible to apply with the U.S. Citizenship and Immigration Services (“USCIS”) for extensions of their E-2 status in two-year increments. The person in E-2 status may apply for an indefinite number of two-year extensions of that status, as long as he or she continues to maintain E-2 status by complying with the requirements of that status.
In the alternative, a person with an E-2 visa in their passport that is valid for five years can maintain the validity of their E-2 status by leaving the United States at least once every two years, by no later than the expiration date of their E-2 status, and then applying to re-enter the following day, at which time, if their application for admission is successful, they will be re-admitted to the United States with a new two-year period of E-2 status.
However, if the visa holder fails to leave the United States after the last day of E-2 status that has been authorized, then that person is considered to be out-of-status, which is a violation of U.S. immigration laws, may cause ineligibility for obtaining future visas, and makes that person subject to removal (deportation) from the United States. Also, according to the immigration law provision INA 222(g), if a person overstays the duration of his or her non-immigrant status granted by Customs and Border Protection, that person is subject to having their visa automatically voided.
Visa Eligibility for E-2 Family Members
Any spouse or unmarried child under the age of 21, regardless of nationality, of an E-2 visa holder is eligible to receive a derivative E-2 visa so they can accompany the primary alien to the United States. The E-2 visas for the spouse and child do not provide authorization to work in the United States. However, spouses can file an I-765 Application for Employment Authorization with the USCIS in order to obtain an Employment Authorization Document card (“EAD” card). Children of E-2 visa holders are not eligible to work in the United States.
Advantages of an E-2 Visa
- There is no absolute time limit on how long an alien can stay in the U.S. under E status, unless the USCIS refuses to allow a continued stay under E status.
- No formal affiliation with a foreign business located abroad is required, provided that the business is at least 50% owned by citizens of the foreign national’s qualifying country.
- The foreign national is not required to have worked for a foreign affiliate of the U.S. business for any period of time.
- E-2 spouses can obtain employment authorization in the United States
Please contact us for additional information on the criteria for U.S. E-2 visas and how an immigration attorney can help you with the process.
