An E-2 Visa (Investor Visas) is a nonimmigrant visa available to foreign nationals who seek to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign country of which he/she is a national. The foreign national must meet certain eligibility requirements of the E-2 Visa classification and be coming to the United States solely to develop and direct the operations of an enterprise in which he/she has invested, or of an enterprise in which he/she is actively in the process of investing a substantial amount of capital.
Eligibility Requirements for an E-2 Visa include, but are not limited to:
- A Treaty of Freedom, Commerce and Navigation or Bilateral Investment Treaty or other arrangements such as NAFTA between the United States and the country of the investor’s nationality. The investor must possess the nationality of the treaty country.
- The U.S. investment (or business) must be at least 50% owned by the investor who is a national of the treaty country.
- The E-2 Visa investor must have the ability develop and direct the business. The investor must own at least 50% of the interest or shares of the business; and the investor must have full and complete authority, power and discretion to manage and control the business, affairs and property of the company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the company’s business.
- The E-2 Visa investor must have possession and control of the funds invested and the investment cannot be based on a third party investing. The E-2 Visa investor must have received the funds by legitimate means (i.e., savings, gift, inheritance or legal contest) and have control and possession over the funds.
- The investment must be placed at risk by the investor placing capital, (including funds and other assets) at risk in the commercial sense, with the objective of generating a profit. The investment capital must be subject to partial or total loss if investment fortunes reverse.
- The investment capital must be the investor’s peronal funds (0r marital funds) or unsecured personal business capital or capital secured by personal assets. Indebtedness secured by the assets of the business is not a qualifying investment. Unsecured loans or loans secured solely by the investors own personal assets are considered a qualifying investment.
- Capital that is in the process of being invested must be irrevocably committed to the enterprise.
- The investment enterprise or business must be a bona fide commercial undertaking. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.
- The investment must be substantial. The US Citizenship and Immigration Services (USCIS) or US Consulate will look to the amount invested weighed against the total value of the enterprise, or established enterprises, or the amount normally considered necessary to establish a viable enterprise for new businesses.
- The investment must not be marginal. The investment cannot be solely to earn a living for the E-2 Visa investor and his or her family. It must expand job opportunities, generate other sources of income and must generate an income substantially above what would be considered a living; the E-2 Visa investor may not work simply as a skilled or unskilled worker.
Applying for an E-2 Visa
- An investor already in the US may apply for a change of status to an E-2 visa classification through application to the USCIS. If approved, the change of status to E-2 will be granted for a period of not more than 2 years. If the investor does not leave the US and apply for an E-2 Visa with the U.S. Embassy, an application requesting the extension of the E-2 visa classification must be made to USCIS before its date of expiration. However, in order to gain admission to the US, an E-2 visa must be obtained from the US Consulate in the investor’s home county even if the investor’s status was changed to E-2 by USCIS.
- In order to obtain an E-2 visa, an investor must register the company with the U.S. Consulate in his or her home country by submitting certain applications and documentary evidence. Upon registration of the company by the US Consulate, the investor will be granted an interview and, if otherwise qualified, an E-2 visa will be issued. This process must be planned for well in advance. The typical processing times at some consulates can take up to 6 weeks or more before the company is registered, the applicant is notified, an interview is granted and a visa issued.
- Applying for a change of status with USCIS or registering the company and applying for an E-2 visa with a U.S. Consulate is a complex process requiring substantial documentation of the investment, including the source of funds used for the investment. Certain applications are filed only with USCIS and others are filed only with the U.S. Consulate in the investor’s country of nationality. While the procedures are consistent when filing with USCIS, the procedures when filing with U.S. Consulate may vary. In no case should an investor attempt either filing without the assistance of a U.S. immigration attorney knowledgeable in business immigration matters.
The spouse and children of E-2 Visa holders are eligible for E-2 classification. After being admitted to the US in E-2 staus, the spouse may apply for work authorization by filing Form I-765 Application for Employment Authorization with USCIS.
Whether you are in the US and would like to change your classification to E-2 or extend it, or if you are outside of the US and would like to know more about E-2 Treaty Investors, the experienced immigration attorneys at Allen & Pinnix, P.A., can help. Schedule a confidential consultation or call our office: 919.755.0505.