What does an E2 visa allow a holder to do?

The E2 visa is a nonimmigrant visa, which means the holder is granted temporary permission to live in the US, to set up or invest in a US company.

The maximum period of stay is five years, although the final decision will be determined by your nationality and the discretion of the consulate approving your application. E2 visa holders have permission to travel in and out of the US without restriction.

Who is eligible to apply for an E2 visa?

Investors from one of the treaty nations intending solely to ‘develop and direct’ the company would be eligible to apply for an E2 visa.

In addition, following successful completion of the E2 company registration process, you will be required to seek visas for ‘sponsored employees’ – individuals you wish to employ at your US company.

To be eligible, sponsored employee applicants must:

• have the same nationality as the owners of the foreign company;
• be filling an ‘executive, managerial or essential role’ at the US company – as detailed in the E2 company supporting documentation;
• intend to return to their residence abroad following completion of their work in the US; and
• if they are UK citizens, present evidence of their residence in the UK.

 
The employees must apply for E2 status at the consular post where your E2 registration application was filed, and should expect to be invited to interview to discuss their application and specifically to demonstrate requisite managerial level experience or essential skills.

What are the E2 Treaty Investor visa requirements?

The E2 Treaty Investor visa allows entrepreneurs and business owners from Treaty countries to invest in a US business, either through setting up a new enterprise or by investing in an existing one.

Eligibility for an E2 Treaty Investor visa rests on the following conditions:

• You are a Treaty country national.
• You have made a substantial investment in a US business.
• The business that you have invested in is viable and actual.
• You have control over the funds invested and are placing them at risk by investing in this enterprise.
• Your investment will have a positive effect on the US economy.

 
One of the more problematic criteria for E2 applicants is the requirement to have made a ‘substantial investment’.

There is no specific definition or ‘brightline’ test to explain unequivocally what is required to satisfy United States Citizenship and Immigration Services (USCIS) eligibility requirements.

How does a foreign company apply for E2 company registration?

Before you can apply for an E2 visa as an individual applicant, your company (non-US) must first be registered as an E2 Treaty Investor Business.

An application evidencing the foreign company’s eligibility must be filed at a US consular post abroad, along with an initial E2 employee visa application. Filing requirements vary from post to post, and processing times can fluctuate based on consular workload. It is best to confirm estimated processing times at the appropriate consular post at the time the E2 company registration and visa applications are filed.

To be eligible for company registration, the following key requirements, among others, must apply:

• The foreign company must be owned and controlled at least 50% by individual nationals of a treaty country (see below).
• The foreign company must be investing in a new or existing enterprise in the US. In practice this could mean establishing a new business venture, or purchasing a pre-existing business.
• The company cannot be an idle investment held for potential appreciation in value. For example, investment in undeveloped land or shares by an investor who has no intent to direct the enterprise would not meet the criteria.
• You must demonstrate that risk capital has already been committed by you as the applicant investor, and that the invested capital is subject to partial or total loss in the event that the entity fails. For example, by providing evidence of a lease on commercial premises for your business.
• The foreign company must demonstrate that the capital invested is irrevocably committed to the enterprise and primarily derives from corporate earnings.
• The invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the relevant type of enterprise.
• The foreign company must be in possession of the funds it will invest and the funds must be fully committed to the business.
• The foreign company must show a clear and legitimate path regarding the source of capital it will be investing.

What constitutes ‘substantial investment’?

USCIS uses the phrase ‘substantial amount of capital’ when referring to the E2 investment. They define it as being substantial in relation to the business cost, and sufficient to ensure the investor’s commitment to the business and their involvement in the business, and the ongoing success of the business.

The investment must also represent a personal financial risk to the investor and must be in an active opportunity; passive investments, like stocks and bonds, do not qualify under the E-2.

Some key points to consider include:

• Property investment does not count as part of the E2 investment requirement. The investment must be made in a trading business with employees – not stocks or property.
• Expenditures already incurred can be included in the investment calculation. This could encompass a broad range of expenditure and outlay, from travel, sales and marketing to equipment purchases and a range of other expenses.
• The investment cannot be marginal, and must have the capacity to generate more than a minimal income.
• The investment should result in employment for US citizens.

How much do you need to invest for an E2 visa?

There is no specific or arbitrary minimum or maximum investment amount that would guarantee you are granted an E2 Treaty Investor visa. To qualify, you will need to show there has been and will be a ‘substantial investment’ in a US enterprise. ‘Substantial’ is assessed in a proportional sense. It is a subjective standard with no bright-line test or fixed threshold.

To make its decision, your application and the proposed investment amount will be assessed by USCIS against a number of factors:

• What form your investment takes, e.g. investing in an existing business or setting up a new business
• The proportionality test
• The source of your funds

 
What is seen as ‘substantial’ is tied to the type of business that you invest in, whether that be a new business or an existing enterprise, and how much it will cost for the business to become and remain operational.

In essence, the definition of substantial is entirely relative to your individual case.

A substantial investment is one that is sufficient to ensure the investor’s commitment to the successful operation and development of the enterprise by its proportion to the total cost of the business.

If the company is an ongoing concern in the US, then the focus will be the actual revenues that the business has achieved, and the number of jobs created in the United States.

In the absence of prescriptive direction, we are able to advise on what the authorities require in a successful application. The key takeaway for applicants is that there is no arbitrary figure to work to.

You will need to calculate the level of investment (costs) as appropriate to the nature of your opportunity ie relating either to start-up a new business (lease, inventory, marketing, IP etc?) or for the purchase price of existing business. Additional factors are also likely to influence the investment level, such as the industry and type of business. A consultancy practice, for example, should require a smaller level of investment than a manufacturing business. There are inevitably pros and cons to this approach.

While it can be more challenging for applicants to understand and pre-empt what level of investment adjudicators will accept as substantial, this degree of flexibility means it may be possible to secure the visa with significantly less investment than say the EB-5 program.

What is the proportionality test for the E2 investment amount?

The proportionality test is used to decide whether an investment is substantial or not. It compares two figures:

• the investment amount
• the cost of purchasing an existing business or the costs of setting up a new business

 
Using these two figures, the proportionality test calculates a percentage of investment in comparison to the cost of the business (whether new or existing).

For instance, where the business purchase price is $100,000, and the investment amount is $90,000, the percentage is 90%.

By comparison, where the cost to set up a business is $500,000 and $250,000 has been invested, the percentage is 50%.

Where a business with a market value of $3 million receives an investment of $900,000, the percentage is 30%.

Generally, the lower the cost of purchasing or setting up a business, the higher the percentage must be to be seen as ‘substantial’. Therefore, the higher the cost of the business, the lower the percentage needs to be.

So, any of the above investments may be acceptable for an E2 Treaty Investor visa, as long as all other eligibility conditions are met, regardless of the level of start-up costs, whether high, for instance, in the case of a factory, or low, as in when starting a consultancy business.

What if you’re investing in an existing US business?

When you have invested in an existing US business, the value of the business will be taken into consideration, whether you are purchasing the business in its entirety, purchasing part of the business along with other investors, or otherwise making an investment in the business.

The value of the business is therefore taken as how much it was purchased for, or a value that is deemed to be a fair market value.

What if you’re investing in a new US business?

Where your investment has taken the form of setting up a new business, the figure of interest to USCIS will be the complete costs of setting up your new business, from the initial start-up costs to the funds needed to make that business operational.

If you’re setting up a new business with low start-up costs, this can be the most difficult scenario when applying for an E2 Treaty Investor visa because you can only apply for the visa once you have made the investment.

Making the investment means spending the investment. You can’t simply have the money in your bank account waiting to pay set-up costs as they occur.

Your business must be established before you can apply for an E2 Treaty Investor visa and you must be able to demonstrate that your investment has been spent, what it has been spent on, and that the investment is at risk. For this reason, it is recommended that you pay as many set-up costs as you can before you make your visa application, for instance, your lease, suppliers, or employee costs.

Will you need to show the source of the E2 investment funds?

The E2 investor must have control of the investment funds and have obtained them from lawful and acceptable sources, including:

• inheritance
• personal savings
• earnings from investments
• monetary gifts

 
Loans that are secured against the investor’s personal assets, for instance, a second mortgage on the investor’s home, are generally acceptable, as are certain unsecured loans.

Loans secured on the business that is being invested in for the purpose of the E2 visa, however, are not an acceptable source of funds for an E2 investment.

The amount of financing through loans that is allowed as part of your investment is down to the discretion of the embassy or consulate officials.

Where the E2 investor purchases a business, the percentage of secured financing allowed rises with the price of the business. For instance, a business purchased for $100,000 would be allowed a lower percentage of secured financing than a business purchased for $300,000.

What is the E2 visa business plan?

Your application for an E-2 visa also requires submission of a formal business plan. The plan should detail your projections for the business, and how your E-2 investment is going to be utilized to make the business operational and successful in meeting your growth targets.

Which are the E2 Investor visa countries?

The owners of the foreign company must be nationals of a country that has a treaty of commerce with the United States, or a country designated by Congress as eligible for participation in the E-2 non-immigrant visa program.

If you are a national of another country, there may still be alternative entry options available to you, depending on the nature and required duration of stay. Take advice on your particular circumstances.

Even if you have satisfied the treaty investor visa requirements, the maximum possible duration of the E-2 visas will be dictated by your country of origin. For example – for UK citizens, the maximum is five years, but for Mexican nationals it is 12 months. Some countries operate under a maximum of 3 months stay (e.g. Egypt, Jordan).

Looking specifically at the treaty between the US and UK, E-2 classification requires that UK citizens reside in the UK at the time they apply for their E-2 visa. You will need to evidence that UK residence has been maintained through for example maintaining a job and home in the UK.

How to apply for an E2 visa

Once you are in a position to have determined your level of investment funds and having made the investment as required, your next step will be to complete the formal application process.

The first step is to register your company using the Online Non-Immigrant Visa Application (form DS-160). You will be required to upload a photo of yourself.

Once you have completed the application process, print off the confirmation page for your own reference and to present at your interview.

Set up an account on the Visa Appointment Service website. Pay the machine-readable visa application fee, arrange for your passport to be returned to you by courier service, and schedule your interview appointment.

You should now submit any supporting documents electronically. These will include:

• covering letter describing your business, who will benefit from the business, and your eligibility for an E2 Treaty Investor visa
• DS-160 confirmation page
• copy of your machine-readable visa application fee receipt
• letter on company letterhead giving details of your job
• letter of agreement between the treaty investor and their legal representative, where applicable
• colour photocopy of the biometric page of your passport
• colour photocopies of any US visas, US entry/exit stamps, or I-94s
• copy of alterations or extensions to your USCIS granted status
• if you are a UK citizen, evidence of your UK residency
• curriculum vitae
• copies of educational certificates and qualifications
• signed statement of intent which confirms that you will depart the USA when your E2 Treaty Investor visa expires
• Articles of Incorporation or Organisation for your business
• share certificates, operating agreement, share ledgers or other evidence of the ownership of the business
• if there is a parent company, colour photocopies of the biometric pages of the passports of the parent company owners
• if your business in the US is a subsidiary or affiliate of a foreign corporation, the incorporation and ownership documents of that business
• organisation chart showing the full ownership structure and legal proof of ownership for all parties concerned, where the chain of ownership includes intermediary entities, or where you have a large company with numerous owners or subsidiaries
• if the investor is a public company with many shareholders, an affidavit signed by the relevant corporate official stating that the company is exclusively traded on the relevant stock exchange, and a copy of the latest trading information
• details of the investment in the US business venture, and evidence of the investment
• if you are purchasing a US business, a signed and dated, valid purchase agreement, if applicable a binding escrow agreement that confirms how the investment funds will be distributed, what would happen if the E2 visa isn’t granted, and how the business will be purchased
• if you are purchasing a franchise, a signed and dated franchise agreement, a copy of the franchise disclosure document, and evidence of franchise fee payment
• details of the source of the invested funds with evidence of the source of the funds and that the funds have been moved to the US
• if the funds have come from a foreign based affiliate or parent company, a copy of that company’s most recent financial statement
• evidence that demonstrates that the business is genuine and in operation
• if the business is a subsidiary or an affiliate of a foreign company or group of companies, evidence that shows that the foreign company or group of companies is active
• evidence that the business now or in the future has the ability to make more than enough income to provide for you (the investor) and your family
• if the business is already established and in operation, US federal tax returns for the past 3 years, profit and loss statements for current and past calendar years, all W-2 forms, 1099s and payroll invoices for the last 2 years

What supporting documentation will I need to submit in the E2 visa application?

In order for a foreign company to be granted E2 registration as a treaty investor, it will be necessary to gather and submit documentation evidencing that each requirement has been met. Such documentation would include, among others:

• Evidence of the nationality of the foreign company.
• Evidence of the trail of investment from the foreign company to the US company, and usage of such funds to develop the enterprise.
• Evidence that the US company is, or soon will be, a real and operating enterprise.
• If the foreign company is investing in an operating business, evidence that the business is more than marginal.
• If the foreign company is investing in a start up, evidence that the business will be more than marginal.

How long does it take to get an E-2 investor visa?

E-2 visa processing times are determined largely by the US Consular post where you filed your petition (usually in your country of residence). As a general guide, you could expect E-2 visa processing to take around one to two months. Processing can take longer if there are issues with your application. For example, where you have received a request for further information. This emphasises the importance of ensuring your application is full and complete when filed.

Will there be an E2 visa interview?

4-6 weeks after submitting your application and business plan to the US Embassy, you should expect to attend an E2 interview. You will be questioned on the information you have provided about yourself and the business in your application and business plan.

It will be important to prepare well for the interview, to be familiar with the detail of your submissions and to answer any general questions for example about your immigration history and education and work background.

The business plan will also be scrutinized to ascertain the degree of economic benefit your business would bring to the US market.

Can I bring my family or other dependents with me?

The spouse and children of an employee granted an E2 visa may apply for E2 visas, which will allow them to reside with the employee in the US. E2 dependent visa applications may be made at the time of the E2 employee’s interview, or by scheduling a separate interview at a US consular post following approval of the E2 employee’s visa application.

Can my spouse work in the US?

With E2 dependent status, E2 spouses can work without restriction in the US. They do not have to be employed by the E2 business.

Can I renew my E2 visa?

E2 company registrations are renewable indefinitely (for up to five years at a time), provided the foreign and US companies continue to meet E2 requirements.

E2 visa applicants should apply to extend their E2 visa before expiry of their current grant of leave to maintain continuity of status in the United States. However they must demonstrate as part of their renewal their continued intent to return to their home country following completion of work in the US.

There are additional factors to take into consideration when applying to extend, including the requirement to provide specific documentation to accompany and support your renewal application. Take professional advice on your specific circumstances.

There is no limit to the number of times you can apply to renew your E-2 visa. Each renewal is an application, requiring a petition and supporting documents to be submitted evidencing that you have met the requirements under the visa and that you continue to be eligible under the route e.g. creating at least two full time jobs for US resident workers.

What if my E2 visa application is refused?

If your application is rejected, denied or refused you will be informed by letter. The letter will identify the grounds for refusal. On this basis, you may wish to seek professional advice on your options to either petition or to reapply.

Can I apply for a US Green Card with an E2 visa?

An E2 visa does not provide a direct path to permanent resident status but options may be available to you depending upon a number of factors, including whether you continue to operate an overseas business or have extraordinary achievements, awards or recognition in your field. Seek advice on the options available to you.

Should I consider the E1 visa?

The E1 Treaty Trader visa is potentially open to individuals or businesses of treaty nations engaged in substantial trade activity with the US – as opposed to the E2 which is relevant where there has been and will be further significant investment in a US business in which the investor has at least a 50% ownership. Take advice on suitability based on your circumstances.

Need assistance?

The process of obtaining an E2 Treaty Investor visa can be lengthy and complex. NNU Immigration are specialist US immigration attorneys with a wealth of knowledge and experience in E-2 visa applications and company registrations.

If you’re considering applying for the E-2 Treaty Investor visa, or have previoulsy made an E2 visa application that has been refused, contact us.