E-2 Visa requirements are guided by U.S. immigration statutes and regulations. However, there are many grey areas stipulated in the requirements that necessitate consular or USCIS officers to use their judgment when reviewing the supporting documents.
Some consular and USCIS officers can be more difficult than others and at times adjudicate applications in slightly different ways. This variance in assessing applications can make a material difference in the approval process. Overall, it essentially boils down to experience.
The E-2 Treaty Investor Visa came about as a result of the increase in international investments and Bilateral Investment Treaties between the United States and other nations. There are bilateral benefits with the E-2 visa, not only for the foreign investor but also for the United States with capital infusion and job creation. In 2015, a total of 52,122 E-2 Visa applications were submitted with 41,152 approved and 10,972 denied.[1]
The E-2 Visa, however, is not one that will lead to permanent residency. It is to be distinguished from the EB-5 Investor “Green Card.”
ImmigrationBusinessPlan.com has over a decade of experience dealing with E-2 visa requirements. We will be happy to discuss your case and share what our experiences have been with similar cases as yours.
One of the most popular nonimmigrant visas for people who want to invest or start a business and also live in the United States even for a long-term period of time is the E-2 Treaty Investor Visa.
So what are the key requirements for the E-2 Investor Visa?
The requirements for an E-2 visa are extensive and it is important to seek advice from a certified U.S. immigration attorney and an immigration business planner to prepare the needed supporting evidence. This will increase your chances for approval from the Department of State (DOS) consular officer if you are outside of the United States, or the United States Citizenship and Immigration Services (USCIS) if you are in a nonimmigrant visa status in the United States. The general requirements for an E-2 visa according to the immigration laws of the United States are:
1. Requisite treaty:
There must be a treaty between the United States and your country before qualifying for an E-2 visa. See Qualifying Treaty Countries: List Of E-2 Treaty Countries
2. Possess the nationality of the treaty country:
You or the business must have the nationality of the treaty country. Your nationality is determined by the laws of your country. However, the nationality of a business is determined by the nationality of the owners of that business. Where the business is incorporated is irrelevant to the nationality requirement. The adjudicating officers will look into whether 50 percent of the nationals of the treaty country owns the business. If the business is a corporation, the officers will look into the nationality of the stockholders.
3. Active investment or in the process of investing:
Investment:
You must show that you possess and control the capital assets/funds and that you are taking a risk of investing in a business that will generate financial gain. Funds received legitimately such as savings, gifts, inheritance, contest, etc. which you have control over and possess may be considered an E-2 investment.
In the process of investing:
Your funds or assets must be committed to the investment and must be real and irrevocable. Additionally, you must be close to the start of actual business operations and not merely in search of suitable business opportunities, in the stage of signing a contract, intending to invest, possessing uncommitted funds in a bank account, or prospective investment arrangements that have no commitment.
4. Business must be a real and operating commercial enterprise:
The business must produce some service or commodity and cannot be a paper organization. It must be a “for-profit commercial enterprise,” not a paper organization or an idle speculative investment. Non-profit organizations do not qualify.
5. Investment must be a substantial amount of capital:
There is no minimum dollar figure that is considered to be a substantial amount of capital. The purpose of this requirement is to prevent speculative and risky investments. There must be a reassurance that the investor is unquestionably committed to the success of the business. The officers will look to the nature of the business and its projected success
[1] https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVWorkload/FY2015NIVWorkloadbyVisaCategory.pdf
6. Must not be a marginal investment:
- “Marginal investment” is defined as one that “does not have the present or future capacity to generate more than enough income to provide a minimal living standard for the investor and his/her family.”
[9 FAM 402.9-6(E)] The timeframe allowed an investor to determine “future capacity” is within five years from the startup date of the business.
7. E-2 Investor Applicant must develop and direct the enterprise.
In order for you to meet this requirement, you must own at least 50 percent of the enterprise or have operational control of the enterprise through a managerial or executive position. Having control in a joint venture or an equal partnership with two parties may be considered having control of management.
An employee of the principal investor may qualify for an E-2 visa if the employee is a supervisor, manager, executive, or has highly specialized skills that are essential to the enterprise located in the United States.
8. Applicant’s intent to depart the United States
You must intend to depart the United States when the E-2 status terminates. You do not have to establish intent or have a foreign residence that you will not abandon. All you will have to do is tell the officer that without a doubt you intend to return to your home country. This is sufficient for the officer as long as there are no countervailing evidence (i.e. petition to immigrate from a relative) that would trigger further inquiry of your true intent.
What are the risks of applying for an E-2 visa with less than majority ownership?
Applying for an E-2 visa with less than 51% ownership carries three primary risks:
- Unclear Control: Visa officers expect investors to have decisive influence. With a minority stake, you must prove contractual or managerial rights that let you direct key decisions; otherwise, your “control” looks questionable.
- Increased Scrutiny: Consular and USCIS reviewers will dig deeper into your documentation to verify your actual authority. You’ll need detailed operating agreements, voting rights, or board positions—adding complexity and potential delays.
- Higher Denial Risk: Because E-2 regulations link visa eligibility to genuine “at-risk” investment and control, a minority share can weaken the case that you’re truly invested in the enterprise’s success. That increases the chance of refusal.
Mitigation Tips:
- Negotiate formal governance rights (e.g., veto power, board seats) that clearly spell out your decision-making authority.
- Include comprehensive legal agreements and organizational charts in your petition.
- Be ready to explain how your role—despite minority ownership—drives the business’s strategic direction.
By proactively documenting your control mechanisms, you can reduce these risks and strengthen your E-2 application.
How does the investment percentage affect the likelihood of obtaining an E-2 visa?
When adjudicating an E-2 visa, USCIS weighs both investment percentage and absolute dollar amount, but their relative importance shifts with the size of the enterprise:
- Small Businesses Require Higher Percentages
- In ventures costing under $200K, officers expect you to put in nearly all—or at least a very large portion—of the startup capital.
- Example: A $160K business where you invest only $70K (44%) may raise doubts about your “at-risk” commitment. A higher stake signals stronger personal risk and dedication.
- Larger Enterprises Can Lean on Absolute Dollars
- When the total investment runs into the mid-six figures or beyond, a lower ownership percentage can still demonstrate substantial commitment, because the actual cash at risk is significant.
- Example: In a $650K factory purchase, investing $280K (43%) shows real financial exposure and operational backing, even though the percentage is lower.
- Why Both Metrics Matter
- Percentage gauges how much skin you have in the game relative to the total cost—crucial for small startups.
- Absolute Amount reflects the real-world financial risk and the enterprise’s capacity to succeed, especially persuasive in larger projects.
Bottom Line:
- Small-Scale Ventures: Aim for a very high percentage (ideally 75 %+).
- Large-Scale Projects: Focus on a sizable capital outlay (e.g., $100K+), even if your percentage is under 50%.
Balancing these two factors—tailored to your business’s scale—maximizes the chance that USCIS will view your investment as both “substantial” and “at-risk,” key criteria for E-2 approval.
What is the proportionality test for an E-2 visa, and how does it apply to investments in a business?
The E-2 visa is a popular option for entrepreneurs looking to invest in a U.S.-based business. A critical aspect of obtaining this visa is demonstrating a «substantial» investment, which is assessed through the proportionality test.
What Is the Proportionality Test?
The proportionality test evaluates whether the amount of capital invested in a business is substantial in relation to the total cost of the business. Essentially, it measures the percentage of the business’s cost that the investor is covering with their own funds.
Applying the Proportionality Test
- Starting a New Business: When launching a new business, the investor typically funds 100% of the costs to get the operations up and running. This includes rent, inventory, equipment, marketing, and employee salaries. Covering all these costs directly can demonstrate a substantial commitment, which is likely to satisfy the E2 visa requirements.
- Buying an Existing Business: When acquiring an established business, USCIS closely examines the proportion of your investment. For instance, on a $190,000 sale, a $100,000 investment represents roughly 53% ownership—typically strong enough to satisfy the “at-risk” requirement. However, boosting that investment by another $10,000–$20,000 (bringing your stake to around 58–63%) can further demonstrate your commitment and lower the chance of a visa denial.
- Varying Levels of Wealth: Consider another scenario where the investor can only cover 44% of a $160,000 business. This percentage may not meet the threshold for a substantial investment, as smaller businesses usually require a higher proportion of investment to prove commitment.
- Higher Investment in Larger Businesses: Conversely, investing a smaller percentage in a much larger business might still be acceptable. For instance, investing $280,000 into a $650,000 business covers about 43% of the cost. While the proportion is low, the absolute amount of capital invested is significant, which can satisfy the substantial investment requirement.
The key takeaway is that the specific proportions acceptable can vary depending on the size and type of the business, and larger businesses might allow for a smaller investment percentage as long as the total investment is substantial in absolute terms. Balancing the investment proportion with the type and size of the business is essential for meeting the criteria of the E2 visa proportionality test.
How is the proportionality test used to determine the substantiality of an E-2 visa investment?
When evaluating whether an investment is “substantial,” USCIS uses the proportionality test to compare the investor’s capital against the enterprise’s total cost or value:
- Assess the Business’s Value: Officers first determine the fair-market price or total capitalization of the venture. This figure establishes the threshold for a substantial outlay.
- Review the Investor’s Contribution: They then examine how much money the applicant has actually placed at “risk” in the enterprise.
- Calculate the Investment Percentage: By dividing the invested amount by the business’s total cost, adjudicators arrive at a percentage, showing the investor’s stake relative to the whole.
- Gauge Substantiality: A higher percentage signals a stronger financial commitment. For example, putting $80,000 into a business worth $100,000 (an 80% stake) typically satisfies the requirement more convincingly than a smaller proportion.
Through this proportional analysis, USCIS ensures that only those who demonstrate a significant, at-risk investment—indicative of genuine commitment—qualify for the E-2 visa.
What is "negative control" in the context of an E-2 visa?
“Negative control” in the E-2 context describes a shared-ownership structure where each investor has veto power over the other’s decisions—ensuring that neither can act unilaterally. This arrangement underscores genuine, balanced authority rather than one-sided control.
Key Ways to Show Negative Control:
- Equal Voting Rights: Structure your corporate documents (bylaws, shareholder agreements) so that each owner holds the same percentage of voting shares, and major decisions require mutual consent.
- Mutual Veto Provisions: Include clauses stipulating that critical actions—like taking on debt, selling assets, or changing management—can only proceed if both investors approve.
- Defined Roles and Responsibilities: Clearly outline each partner’s duties in your organizational charts and job descriptions. For a non-citizen E-2 applicant, demonstrate how their role involves decision-making authority that cannot be overridden without their agreement.
By embedding these features into your governance documents, you prove to USCIS that control is genuinely shared—meeting the E-2 requirement that the investor possess operational command of a bona fide, active enterprise.
How does dual nationality impact the E-2 visa application process?
Dual citizenship can add layers of complexity to your E-2 application. Here’s what you need to know:
- Treaty-Country Entry Requirement
- Always enter on your treaty passport. If one of your nationalities holds E-2 treaty status and the other does not, you must present the treaty-country passport when seeking entry or switching status to E-2.
- Example: A dual Russian–Canadian national must use their Canadian passport (an E-2 treaty country) when entering the U.S. for E-2 purposes. Entering on a Russian passport (no E-2 treaty) under a B-1/B-2 visa precludes an in-country change to E-2 status.
- Consistency on Subsequent Visits
- Maintain the same treaty passport for all future entries. Switching to a non-treaty passport (or another treaty passport with different terms) can invalidate your work authorization and require you to reapply.
- Choosing Between Two Treaty Passports
- If both of your nationalities are treaty countries, consider:
- Visa validity and reciprocity: Some passports offer longer initial validity or multiple entries.
- Practical convenience: Which country’s consulate is most accessible for your renewals?
- Employee sponsorship: Your employees must share your chosen treaty nationality.
- If both of your nationalities are treaty countries, consider:
- Impact on Employees
- Any E-2 employees you bring over must hold the same treaty nationality you used for your visa. Dual-nationality sponsors should clarify which passport employees will use and ensure they qualify under that treaty.
- Legal Strategy
- Discuss your unique situation with an immigration attorney to decide which passport optimizes visa duration, entry flexibility, and staff mobility, while ensuring you always meet treaty requirements.
By entering and renewing exclusively on the correct treaty-country passport—and carefully selecting which nationality to use if you hold two—you safeguard your E-2 status and avoid costly procedural pitfalls.