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.
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 E2 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 E2 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:
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
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.