INFORMATIONAL GUIDE ON HOW TO APPLY AND OBTAIN E-2 INVESTOR VISA

The E-2 Investor Visa allows an individual to enter and work inside of the United States based on an investment they will be controlling, while inside the United States. The E-2 Investor Visa is a great way for foreign entrepreneurs to access the US market. Furthermore, it allows the investor and her family to reside in the US for the duration of the visa, which can be renewed indefinitely as long as the business is operational and meets the E2 requirements.

Summary:

• The E2 visa is a non-immigrant visa for individual investors, executives, managers, or essential employees of a company operating in the US.
• A substantial investment in a US company must be made in order to qualify for an E2 visa.
• The E2 visa can be renewed indefinitely as long as the business continues to operate and meet the E2 requirements.

Overview:

1. What is the E2 Visa?
2. What are the Benefits of an E2 Visa?
3. What are the E2 Visa Requirements?
4. What is the Process of Getting an E2 Visa?
5. How Long Does it Take to Get an E2 Visa?
6. How Long Can I be in the US on an E2 Visa?
7. If I Get an E2 Visa, Do My Family Members Get Immigration Benefits?
8. Can I Get an E2 Visa as an Employee of an E2 Company?
9. Can I Go From an E2 Visa to a Green Card?
10. Conclusion

1. What is the E2 Visa?

The E2 visa is a non-immigrant visa for investors, entrepreneurs, and individuals looking to operate a business in the United States. With an E2 visa, the investor can start a US business or invest in a US business and work for that business. 

In order to obtain an E2 visa, there must be a substantial amount of capital invested in a US business the investor/applicant must direct and develop that business in the US. To qualify for an E2 visa, the investment must be made either to start a new business or to purchase an existing business.

The E2 visa is only available to individuals from certain countries that have an E2 treaty with the United States (see list below).  

The E2 visa can be renewed indefinitely as long as the business is operational and meets the E2 visa requirements. Aslong as the E2 business continues to operate and meet the E2 visa requirements, and E2 visa holder can continue to renew their visa and live and work in the United States.

2. What are the Benefits of an E2 Visa?

• With an E2 visa, the investor can start a business in the United States and work for that business.
• The spouse and unmarried children under 21 years old can also qualify for E2 visas. 
• The spouse can apply for work authorization, to work in the United States in any type of employment.
• The investor’s children can go to school in the United States.
• There is no set minimum investment amount to qualify for an E2 visa. Investments as low as $60,000 or even lower have qualified for E2.
• The type of business will determine the amount of investment necessary to meet the E2 visa requirements. 
• The E2 visa may be renewed indefinitely. 
• Unlike other non-immigrant visas, it is not necessary to maintain a foreign residence to get an E2 visa.
• The investment must be irrevocably committed to the E2 business and must be at-risk.
• The applicant must be a national of a country with an E2 treaty with the United States.
• In the case of an employee (manager or essential) the nationality of the employee must be same as the nationality of the owners of the business.

3. What are the E2 Visa Requirements?

• The applicant must be a national of a country with an E2 treaty with the United States.
• The applicant must have the intent to depart the US once the E2 status ends.
• The applicant must make a substantial investment in a US company.
• The E2 business must be an active, for-profit business.
• The business cannot be considered a marginal enterprise.
• The investor/applicant must be entering the United States to direct and develop the E2 business.
• The source of the investment funds must be lawful.
• The investment must be irrevocably committed to the E2 business and must be at-risk.
• The applicant must be a national of a country with an E2 treaty with the United States.
• In the case of an employee (manager or essential) the nationality of the employee must be same as the nationality of the owners of the business.   

There are two ways to qualify for an E2 visa: 

• An investor can make an investment in a US business as an individual
• Or aforeign business can make an investment in a US business

Investment as an Individual

• If an individual is investing in a US business, then that individual will be considered the E2 principal investor.
• The country of citizenship of the investor (owner) will determine whether the investor satisfy the nationality requirement.
• If the investor has more than one nationality, the investor would apply for the E2 visa based on the nationality of the treaty country.

• If there are more than one investor, it is essential that at least 50% of the US business is owned by a treaty national. 

Investment by Foreign Business

• If a foreign business is making the investment in the US business, the foreign business will be considered the E2 principal investor.
• The nationality of the business is determined based on the individual owners of the business.
• To qualify for E2, the business must be at least 50% owned by nationals of the treaty country. 

Qualifying Treaty with the United States  

What follows is a complete list of all the countries that have an E2 treaty with the United States:

• Albania
• Argentina
• Armenia
• Australia
• Austria
• Azerbaijan
• Bahrain
• Bangladesh
• Belgium
• Bolivia
• Bosnia and Herzegovina
• Bulgaria
• Cameroon
• Canada
• Chile
• Colombia
• Congo (Brazzaville)
• Congo (Kinshasa)
• Costa Rica
• Croatia
• Czech Republic
• Denmark
• Ecuador
• Egypt
• Estonia
• Ethiopia
• Finland
• France
• Georgia
• Germany
• Grenada
• Honduras
• Ireland
• Israel
• Italy
• Jamaica
• Japan
• Jordan
• Kazakhstan
• Kosovo
• Kyrgyzstan
• Latvia
• Liberia
• Lithuania
• Luxembourg
• Mexico
• Moldova
• Mongolia
• Montenegro
• Morocco
• Netherlands
• New Zealand
• Norway
• Oman
• Pakistan
• Panama
• Paraguay
• Philippines
• Poland
• Romania
• Serbia
• Senegal
• Singapore
• Slovak Republic
• Slovenia
• South Korea
• Spain
• Sri Lanka
• Suriname
• Sweden
• Switzerland
• Taiwan
• Thailand
• Togo
• Trinidad & Tobago
• Tunisia
• Turkey
• Ukraine
• United Kingdom
• Yugoslavia.

4. What is the Process of Getting an E2 Visa?

To obtain an E2 visa, the investor must have the intent to depart the United States once the E2 status ends.   

• For the E2 visa, the investor can satisfy the “intent to depart” requirement by submitting a signed statement that the investor intends to depart the United States once the E2 status ends. 

The investor must make a substantial investment in a US company.

To qualify for an E2 visa, the investor must make a substantial investment in a US company.

• The regulations do not define the term “substantial” or specify a minimum investment amount that qualifies as “substantial.”
• The Foreign Affairs Manual specifically states: “No set dollar figural constitutes a minimum amount of investment to be considered ‘substantial’ for E-2 visa purposes.” [9 FAM 402.9-6(D)] 
• Instead, a proportionality test is used to determine whether an investment is substantial or not. 

Proportionality Test 

• The proportionality test compares 2 numbers: the amount of money the investor actually invest in the business and the total value of the business. 
• The value of an existing business is typically its purchase price.
• The value of a start-up is the total cost to to bring the business to the point of being operational (start-up costs). 
• To determine whether the investment is substantial, the immigration official or consular officer working on the case will calculate the proportion between how much the investor actually invested in the business to the total value of the business.

• For businesses with a lower value, the investment should be a very high percentage of the total value of the business to be considered substantial.
• For businesses with a very high value, the investment may be a lower percentage of the total value of the business, to be considered substantial.
• If the total value of the business is $100,000 or less, the actual investment should be as close to 100% of the total value of the business as possible, to be considered substantial.
• On the opposite end of the spectrum, if the total value of the business is very high (for example $9,000,000), an investment of $3,000,000 would likely be considered substantial even though proportionately it is only 30% of the total value of the business.
• In practice, the higher the investment, the better chance that the investment will be considered substantial.

The E2 business must be an active, for-profit business.

• The business invested in for an E2 visa must be an active, for-profit, business. The business must conduct some sort of entrepreneurial activity.
• Examples of businesses that would meet this requirement include companies that sell some kind of a product or service for profit.
• Passive investments do not qualify.  For example, an investment in a piece of residential real estate, or an investment in the stock market will not meet the requirements to obtain and E2 visa. 

To qualify for an E2 visa, the E2 business invested in cannot be a marginal enterprise.

• A marginal enterprise is a business that does not have the present capacity or the future capacity to generate enough income to provide more than an minimal living for the E2 investor and their family. [CFR Section 214.2(e)]

There are 2 ways to prove that the E2 business is not a marginal enterprise:

• Show that has the present or future capacity to generate more than enough income to provide a minimal living to the investor and the family.
• Show that the business has the present or future capacity to make a “significant economic contribution.” The investor can prove this by showing that the business either current employs or will employ multiple workers.

• In practice, it is looked upon favorably for the business to have one or more employees at the time the application is submitted. 

The investor must be entering the United States to direct and develop the E2 business.

The investor is required to seek entry into the United States for the sole purpose of directing and developing the E2 business and has control of the funds. 

• The investor can satisfy this requirement by showing that they own at least 50% of the E2 business.
• If the investor does not own at least 50% of the E2 business, the investor can still satisfy the requirement by showing that the investor will have operational control of the business.
• The investor can show operational control by having a managerial/executive position within the business.

• The investor cannot be a passive investor and qualify for an E2 visa.

• If a foreign business entity is the E2 investor, it must show that it is directing and developing the E2 business.
• E2 employees do not have to show that they are seeking entry into the United States to direct and develop the E2 business but they must show that they will have managerial duties or will be essential for the operation of the business. 
• If two parties own equal shares in the business entity (50/50), they can still meet the “direct and develop” requirement. Both parties must have full management rights and responsibilities.

The source of the investment funds must be lawful.

The funds that the investor use use to invest in the E2 business must have been obtained lawfully.

• Examples of lawful sources of funds include earnings from lawful employment, income from the sale of a property, gifts, an inheritance, personal loans, etc.
• Loans secured by the assets of the E2 business will not qualify.
• The investor must be able to sufficiently document how the funds were obtained.

The investment must be irrevocably committed to the E2 business and must be at-risk.

To meet the requirements of an E2 visa, the investor must make an investment that is at risk and the investment funds must be irrevocably committed to the E2 business.

• This means that the investment funds must actually be spent on the business and cannot just be sitting in the operating account.

• It is important to present the invoices of the amounts spent on the business to demonstrate that the funds are irrevocably committed.  

At Risk

• To satisfy the at risk requirement, the E2 investment funds must be subject to either partial or total loss.
• This means that there can beno guarantee that the investor will get any part of their funds back.
• To determine whether the investment is truly at risk, the investor can ask theself the following question: If the E2 business fails, how much money would be lost?

Investment is Irrevocably Committed

• The investment funds must be already invested in the E2 business at the time of filing or they must be in the process of being invested in the E2 business at the time of filing.
• The investor must also be close to starting actual business activities, that is the business must be very close to being completely operational.
• The intent to invest, without a present commitment is insufficient to meet the requirements of an E2 visa. Therefore, depositing the investment funds in a bank account, without an actual commitment, is not enough to qualify for an E2 visa.
• That said, a reasonable amount of funds should be kept in a business operating account to cover business overhead once the business is operational.

How much is the investor investing?

• Some consular posts are more strict than others and will want to see a higher investment amount, to qualify as a ‘substantial’ investment. It is important to ensure that the attorney handling the case has experience with the particular embassy where the application will be filed. 

5. How Long Does it Take to Get an E2 Visa? 

There are five main stages of the E2 visa process that determine how long it will take:

• Preparation of a business plan and investment budget,
• Creation of the company in the US, which involves determining the state where the business will be constituted, 
• Document gathering,
• Legal preparation,
• Consular Processing

Preparation of a business plan and Investment Budget

• The investor must decide whether to purchase an existing business or create a new business

Creation of Company

• This step involves deciding what type of company to constitute (LLC, Corporation, Partnership), where to constitute the company (which of the 50 states), and applying for an Employer Identification Number. 

Document Gathering

• Once the investor hires an immigration attorney, they will consult with the client and review the case. They will then provide the investor with a list of all the documents needed to file the E2 visa application.
• The gathering of documents takes clients somewhere between 1-2 months. This can be faster or slower depending on the investor.

Legal Preparation

• Once the investor has provided the documents to the immigration attorney, they will take about two weeks to prepare and complete the necessary forms and to compile the package to be filed with the Embassy. 

• The attorney will request an interview date at the Embassy. 

• They will then file the completed E2 petition. It is important to keep in mind that generally, Embassies take approximately 1-2 months (depending on the embassy) to review the application prior the interview. 

Application Processing

• Once the application has been filed and reviewed, the investor will be required to attend a personal interview at the Embassy where the consular officer will ask questions about the nature of the business, the role of the investor, employees, future plans of growth, etc. 

• The family members over 12 years old who are also required to accompany the applicant. 

• At the interview, the applicant will be informed whether the application was approved. 

• If the visa is approved the consular officer will keep the passports of the applicant and the family members, and those will be sent the visas approximately 7-10 days after the Embassy interview.  

• Occasionally, the consular officer will decide to conduct an “administrative review” of the application, and in those cases, it might take a little longer to get a decision. However, this is rare. 

6. How Long Can I be in the US on an E2 Visa?

• The length of time the E2 visa is valid for depends on the country issuing the visa. The period of visa validity generally ranges from 3 to 5 years.
• If the E2 visa is valid for 5 years, this does not mean that the investor can stay in the US for 5 years at a time.
• The status (not the visa) determines how long the investor can stay in the US at any one time.
• With an E2 visa, the investor are granted 2 years of status each time the investor enters the US.
• With a valid E2 visa, the investor can exit and re-enter the US to get an additional 2 years of status.
• There is no limit to the amount of times the investor can renew the E2 visa.
• The investor can continue to renew the E2 visa as long as the company meets all the E2 visa requirements.

7. If the E2 applicant/Investor is approved, do the Family Members Get Immigration Benefits?

• Yes, as the principal E2 applicant, the investor can bring the spouse and unmarried children under 21 years old.
• The spouse and unmarried children with also have E2 status.
• The spouse may apply for a work permit to work in any lawful capacity in the United States.
• The children may attend school in the US but they may not work.

8. Can I Get an E2 Visa as an Employee of the E2 Business?

Yes, a noncitizen may get an E2 visa through employment with an E2 business enterprise.

There are generally 3 classes of employees that can get an E2 visa:

1. Executive Employees
2. Supervisory Employees
3. Employees with Special Skills that are Essential to the E2 Enterprise

9. Is it possible to obtain a Green Card after E2 Visa approval?

• The E2 visa is a non-immigrant visa category. This means that the E2 visa is temporary and does not directly lead to a green card.
• In order to obtain permanent resident status (green card) the investor will have to apply for an immigrant visa or adjust status to an immigrant status.
• The investor can apply for an immigrant visa or adjust status in the US while the investor has an E-2 visa.

10. Conclusion 

The E2 Visa can provide nationals of treaty countries with a fantastic option to reside and work in the US indefinitely. Although the application process might seem overwhelming, our clients have found that the benefits for the applicant and family members make the process worth it. 

This guide provides an overview of the E2 visa, requirements, and application process. However, at Mercado & Rengel LLP, we are happy to assist with any questions you might have after reading this, and in all stages of the application process.

ATTORNEYS FEES: range between 8.000 – 12.000 Euros

Includes: Creation of business entity in the US, preparation of applications for principal applicant and all dependents. 

Does not include: State fee for creation of company (depending on the state somewhere between $125-$500), visa fees (220 euros/applicant), translations (if needed). 

We are available to answer any questions you may have in regards E2 application process. 

We at Mercado & Rengel are experienced immigration lawyers and international law in general. We are available to assist you in from our offices in Boston, Massachusetts USA and Madrid, Spain. Please do not hesitate to contact us in Madrid at +34911123911 or in the USA at +1-617-284-6700, by email at info@mercadorengel.com or by Skype at mercado.rengel.

www.mercadorengel.com