E-2 Visa - Treaty Investor

OVERVIEW

A citizen of a foreign country, who wishes to enter the United States, generally must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. The type of visa you must have is defined by immigration law, and relates to the purpose of your travel.

DEFINITION

The Treaty-Investor status applies to citizens of treaty countries who wish to enter the United States as part of a company that "invests" a substantial amount of money in a U.S. company.

The following information describes the Treaty Investor E-2 non-immigrant visa. Please note that this visa is not a substitute for an immigrant visa. Persons wishing to remain indefinitely in the U.S. should apply for the appropriate immigrant visa.

ELIGIBILITY

General requirements

The investor, either a real or corporate person, must be a national of a treaty country.
The investment must be substantial (i.e., it must be sufficient to ensure the successful operation of the enterprise). Therefore, the percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
The investment may not be "marginal". It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States.
The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, (s)he must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
An "investment" may take numerous forms, including cash and other financial instruments, as well as capital in the form of machinery and inventory.

A person in a "supervisory" or "executive" position should possess managerial skills and experience and should be in a position of authority and responsibility. Factors considered include: title, salary, place in the organizational structure, responsibility for discretionary decisions and directing and managing business operations. Employees possessing "essential skills" are those employees that have knowledge or skills which are essential to the effective operation of the U.S. enterprise. Factors considered include: the degree of proven expertise in the area of specialization and the length of experience or training with the company. Finally, an E-2 visa is also available for "highly trained technicians and start-up personnel" who come to the U.S. to train or supervise technicians employed in manufacturing, maintenance and repair functions.

TREATY COUNTRIES

To view a list of the Treaty Countries, please follow this link at the bottom of this page.

ISSUES OF CONCERN

There are a number of issues that must be addressed by a treaty investor before (s)he can obtain an E-2 visa.

The "Investment" Must Be "Active" And "Substantial"


A foreign national makes a qualifying "investment" of funds in an enterprise if the funds were under the control of the treaty national and were placed "at risk" in the commercial sense with the objective of generating a profit. This means that the E-2 investor must either invest his/her own money or, at a minimum, have control over the monies used to invest in the business.

An investment is "active" if a foreign national has made an irrevocable commitment of funds to a for profit enterprise that has met all of the applicable legal requirements for doing business in a particular jurisdiction in the United States. This generally can be shown by showing that the E-2 company has been established under the laws of the State where it is established.

An investment is "substantial" if it is sufficient to ensure the foreign national's financial commitment to the successful operation of the enterprise, and is of a magnitude that will support the likelihood that the foreign national will successfully develop and direct the enterprise (this is related to the issue of whether the company is "sufficiently funded").


The U.S. Company Will Be "Sufficiently Funded"

The government wants to ensure that the company being established has sufficient funding to create a good likelihood of being successful (a new company actually has up to five years to prove this fact). This can be done by either placing an initial investment in the U.S. company's bank account, or by preparing a letter of credit or some other similar form of financial commitment from the foreign company to the U.S. company. This will also show that the foreign national can afford to invest in the U.S. company (i.e., pay the start-up costs associated with the U.S. company such as rent, salaries and other direct overhead expenses).

Note that this amount changes depending upon the type of business being started. For example, the start up costs for purchasing an existing business (e.g., a retail establishment) is clear because you know the cost of the business. However, this cost is less clear for a service company such as an IT consulting company or designer. The actual amount that must be invested for this type of business is much less, especially if it can be shown that the new company already has contracts.


The Foreign National's Investment Is More Than "Marginal"


A "marginal" investment is one in which the foreign national expects to only earn enough to support him/herself (i.e., that the foreign national intends to live off the income from his or her investment). If this is the case, then the new company is not an "investment", but a way of making a living. As such, such a company does not qualify for an E-2 visa.

This can be one of the most difficult items to show. In order to show that a U.S. investment is not marginal, the foreign national must show that (s)he does not need the monies earned from his or her U.S. investment to pay for his or her day-to-day living expenses. This can be shown that the foreign national has sufficient funds to live off of, such as other investments, other jobs, an inheritance, monies in the bank, etc. A foreign national can also show that a business is not "marginal" by showing that it historically has or will likely have a positive impact on the U.S. economy (e.g., create jobs for U.S. workers).


The Foreign National's Duties Will Be Instrumental In Developing And Operating The U.S. Company


This simply means that the foreign national has the knowledge and ability to operate the E-2 business or manage the investment. A foreign national is not always required to have an active role in the day-to-day operation of a U.S. investment. However, it is always helpful to be able to show this will be the case.


DEPENDENTS

Spouses and unmarried children under 21 years of age, regardless of nationality, who wish to accompany or join the principal visa holder in the United States for the duration of his/her stay require derivative E visas. Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but visit for vacations only, may be eligible to apply for visitor (B-2) Visa, or if qualified, travel visa free under the visa waiver program.

The spouse and/or children of an E visa holder who reside in the United States under their derivative E visas, do not need to apply for a student (F-1) visa to study in the U.S.
Spouses of E visa holders may seek employment authorization on derivative E visas.

MAXIMUM PERIOD OF ADMISSION

The time period an E-2 visa holder is entitled to remain in the U.S. is generally based on the "reciprocity" agreement in the treaty. A foreign national's visa stamp is always for two years from the date of last entry. However, there is no limit to the number of times an E-2 visa can be renewed, so long as the sponsoring company still qualifies as an E-2 sponsor.

It is also important to remember that an E-2 visa cannot substitute for an immigrant visa, and that treaty investors must have an intent to depart at the end of the visa. They are not, however, required to retain a residence abroad to which they will return.



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