E-2 Investor Visa: Your Gateway to Business Dreams in the U.S.
The E-2 Investor Visa is a golden ticket for folks from certain countries. It lets you either start a brand-new business or buy an existing one in the U.S., and guess what? You get to stay here and run it! Taking the leap to apply for this visa, especially with the help of an attorney, is a big move. So, make sure you’re well-informed about how everything works before diving in. Knowledge is power, after all!
I Want to Start the E-2 Investor Visa Process. How Do I Begin?
So, you are interested in the E-2 investor visa? Great choice! Here is a simple guide to get you started:
Schedule a Consultation: It’s always good to begin with professional advice. Set up a session to discuss your background, necessary documents, and get answers to important E-2 related questions. At the meeting, we will do the following:
If you have dual citizenship or multiple passports, remember: you can only use the passport you entered the U.S. with if you plan to change your status instead of obtaining a Visa at the Consulate.
Also, check your country specific E-2 page on the U.S. consulate’s website for any special rules or requirements.
Understand Your Investment:
Track where your investment funds come from.
Review the company’s business plan and its registration details.
Know Your History:
Have you had any issues with immigration or law enforcement? It’s crucial to know as it can affect your application.
Map Out Your Process:
If you have a good case based on the above information, we will outline your E-2 visa journey. Planning ahead will save you time and stress.
Breaking Down the E-2 Visa Rules for Investors: What You Need to Know
1. Ownership Rules
Starting a Business with E-2 Visa: You need to buy or set up a business owned and run by people from the treaty country (countries that have an agreement with the U.S.).
Who Can Apply:
The investor can be one person or a whole business from the treaty country.
If we are talking about a business, its nationality is based on the nationalities of its owners.
Ownership Rules:
The investor should own at least half of the business.
In some situations, if the investor is mainly coming to the U.S. to guide and manage the business, they need to show they really control how things run. Just being a manager doesn’t count.
Shared Ownership:
If two different treaty countries own and run the business together, workers from either country can get E visas.
You can’t count U.S. citizens or green card holders when figuring out the business’s nationality.
If two parties invest equally and manage everything, they each have a say that the other must respect. This is often known as “Negative Control”.
More Than Two Owners: The Department of State says if a business has more than two equal partners, it’s hard to say who really controls the business. The “Negative Control” idea doesn’t apply here.
Showing You’re Involved:
If a single person or a main owner wants to come to the U.S. or send someone else, they must prove they’re actively involved in growing and guiding the business.
If a foreign company owns half of a U.S. business and wants to send someone over, that company needs to show it’s really involved in the U.S. business’s growth.
Being an Employee under E-2 Visa:
If the business’s ownership is spread out, making it hard for one person to show control, the owners need to:
Prove they together own at least half of the U.S. business.
Show they can guide and grow the business.
In these situations, the visa holder must work for the U.S. business and be in a top role or have special skills.
2. No Minimum Investment Amount Just Has to Be “Substantial. There is no set dollar figure that constitutes a minimum amount of investment to be considered “substantial” for E-2 visa purposes.
What Does “Substantial” Mean?
It is about proportion, not a set number. We use something called the proportionality test to figure this out.
This test compares how much money you are investing to the total cost of the business.
Say you invest all the money needed for the business; then, you have made a “substantial” investment. But often, people invest a smaller part.
The Sliding Scale of Investment:
If you buy a cheaper business, you will probably need to invest a bigger chunk of the total cost.
For pricier businesses, you might only need to invest a smaller piece of the whole pie.
So, for a business that might cost $100,000, investing the whole amount is “substantial.” But for a $100 million business, even investing $10 million could be seen as “substantial” because it’s still a lot of money!
Different Business, Different Costs:
Think about it: setting up a car-making factory will cost way more than starting a small consulting firm. But the actual price tag of the business doesn’t decide if you qualify for an E-2 visa.
How Do We Figure Out a New Business’s Cost?
This is about finding out how much money is needed to get the business up and running.
You can figure it out by adding up the costs of things you have already bought and the price of stuff you still need to buy. This could include equipment, inventory, land, and buildings.
Proofs like invoices, contracts, market value estimates, or records sent to the government can help show the cost.
Why Does “Substantial” Matter?
It proves you are serious about making the business work.
The more you invest, the more likely it looks that you will be committed to the business’s success.
Precedent Decision – Matter of Lee, 15 I&N Dec. 187 (1975). In this case, E-2 status was not given because the business was worth $64,000, and the person only put in $10,000. The person said they would invest more in the future, but didn’t say when. They didn’t show that their money wasn’t just a small amount in a business that is just to make a living, which goes against rule 22 CFR 41.51.
3.The Business Must Be Real and Operating (Not Speculative), and Funds Must Be at Risk (Irrevocably Committed):
Is the company properly registered? Investment amount spent?
Are there a business plan and/or financial statements?
Having a physical office space/location is no longer a mandatory requirement. However, in most cases, it is recommended to have a commercial physical location.
Invested funds must be at risk (irrevocably committed). The investment cannot be hypothetical. It has to be used in the business before applying. Although, a properly created escrow account for the purchase of business can put the investment at risk.
Investment can be money or tangible or intangible property.
Investor’s Commitment: The government may request whatever documentation is needed to properly assess the nature and extent of commitment to a business venture. Such evidence may include letters from chambers of commerce or statistics from trade associations. Government guidance says that unverified and unaudited financial statements based exclusively on information supplied by an applicant normally are insufficient to establish the nature and status of an enterprise under 9 FAM 402.9-6(D)(d).
Payments for Renting Equipment or Property as Investments: When you pay to rent equipment or property, you can consider that as part of your investment. But you can only count the money you spend in one month. Remember, the total worth of what you are renting doesn’t show your full investment. Also, the yearly rent doesn’t count as an investment unless you paid it all at once, since businesses usually pay rent using their monthly profits.
Precedent Decision – Matter of Khan, 16 I&N Dec. 138 (1977). The respondent had at best a subjective intention to invest in the future. Although he may have invested funds in the past, that does not establish that he will invest funds in the future. More is required for such a showing.
Precedent Decision – Matter of Chung, 15 I&N Dec. 681 (1976). Denied because the applicant only showed that he intended to invest $10,400 on deposit in a savings account in a shoe manufacturing business. The mere intent to invest does not meet the requirements of the Act.
4. Documenting and Tracing the Source of Funds Investment Funds to the Company Account to Expenditures
The money used for investment must be legal, and there should be proof.
This money can come from within the U.S. and can even be a gift. You can also use loaned money, but you cannot use the business itself as a guarantee for that loan.
Inheritance of a business itself does not constitute an investment.
Always keep the records showing where the money came from, how the investor got control of it, how it was moved to the business, and how it was spent.
Precedent Decision – Matter of Csonka, 17 I&N Dec. 254 (1978). The alien who had not invested his own funds did not qualify as a treaty investor. He had acquired loans which had been guaranteed by another party. The applicant assigned to the guarantor as security for the payment of such notes, his stock shares in the company.
5. The Investment Is Not Marginal One Solely for Earning a Living
A marginal enterprise is like a small business that cannot make enough money to support the investor and their family. However, if that business can help the economy in a big way, it is not considered marginal. Usually, the business should be able to grow and make more money within five years from when it first starts its usual activities.
6. Applicant Is in a Position to Develop and Direct the Enterprise
People from the Treaty Country in Charge: People from the country that has a treaty with the U.S. need to run and guide the business. What the business does will help decide how this rule is applied.
Getting a Visa to Work for a U.S. Business: If many people from the treaty country own the business and no single person or company clearly runs it, then:
Together, they need to own at least half of the U.S. business.
As a group, they must show they can guide and grow the U.S. business.
If this is the case, an owner cannot get an E visa as an “investor.” Also, someone can’t work for an owner and get an E visa. Instead, anyone with an E visa must work for the U.S. business. They should have roles like bosses, managers, or workers with special skills.
Being in Charge through Leadership/Management: Let’s say two groups decide to work together in a business. If they both have an equal say in decisions, that can count as being in control for E-2 visa rules. But businesses these days keep changing how they work, so it is hard to list all the ways they can qualify. The main thing is if someone invests and has a major role in managing the business, they meet the rule. That person or group also needs to show they are actively guiding the business.
Job Shops: People got mixed up with the Walsh/Pollard case, thinking it was about “job shops.” Let’s clear that up.
What’s a “job shop”? Imagine a company that needs more workers for specific tasks. This company might not have enough of these workers or maybe they are too expensive to hire locally. So, they get these workers from a “job shop.”
For example, a factory needs 100 workers to make tools. They have only 50. Instead of hiring 50 more, they might get them from a “job shop.”
Now, let’s get to the Walsh/Pollard case. It wasn’t about “job shops” at all. It was the opposite. A company needed a special design service, something they could not do on their own. So, they hired another company for that specific project.
This case was more about hiring for a special project, not filling regular job positions. Where the design is done, whether abroad or in the U.S., doesn’t change the nature of their agreement.
The Walsh/Pollard Case (BIA) Simplified: There was a deal between a foreign company and a U.S. company. Here’s what happened: – The foreign company agreed to offer specific design services that the U.S. company couldn’t do by themselves. – This was a special project-based service. – The foreign company’s workers were really good at what they did. – To make sure the project was done well, the foreign company set up a smaller company in the U.S. – This new company was their special E-2 investment. – Workers came to the U.S. for this special design task. They weren’t there to fill regular jobs at the U.S. company. – It doesn’t matter if the design work could have been done in their home country or in the U.S.; it was about the project.
From this case, you can learn a few key things about E-2 visa rules: – When checking if the investment is big enough, it’s more about what the business does. So, even a small amount of money can sometimes be enough. – The rule of guiding and growing the business is just for those who invest, not the regular workers. – It is important that workers have special skills, and this rule was clearly agreed upon.
7. Employee E-2 Visas – Applicant Is Destined to an Executive/Supervisory Position or Possesses Skills Essential to the Firm’s Operations in the United States
Employer Qualifications: For an employer to bring a worker to the U.S. under the INA 101(a)(15)(E) rule, they must meet certain conditions:
Nationality of the Employer: The person or company wanting to hire must either:
Be from the treaty country, if they’re an individual.
If it’s a company or other type of business, at least half (50%) of the ownership should be from the treaty country.
Matching Nationalities: Both the employer and the employee should be from the same country.
Employer’s Status in the U.S.: If the employer is already in the U.S., they should have and maintain an E status.
Executive and Supervisory Employee Responsibility: To assess if an employee has executive or supervisory responsibilities, keep these factors in mind:
Job Details:
Job title.
Position in the company hierarchy.
Job responsibilities.
How much control and responsibility the employee has over the company or a significant part of it.
The number and skill levels of workers under the employee.
The employee’s salary.
If the employee has prior executive or supervisory experience.
Main Role vs. Side Tasks:
If the main part of the job is about managing or overseeing a big part of the company and only a small part is regular work, then the job is probably executive or supervisory.
But if the main tasks are routine and only a little bit is about overseeing low-level workers, it’s not really an executive or supervisory role.
Context Matters:
The importance of a factor can change depending on the situation.
For example, being called a “vice president” or “manager” might suggest a supervisory role if you’re at a big company with many workers. But if you are going to a tiny office with just two people, the title alone doesn’t mean much.
Essential Employees: E visa rules say that some employees have unique skills that are vital for the business to run efficiently. Here’s a breakdown:
Special Qualifications: These are unique skills or talents that an employee brings to a job that is crucial for the business to run well.
Employee’s Role:
The employee needs to have these special skills.
The business should need these skills for it to run properly.
Who Proves It: It’s up to the company and the person applying to show that the employee has these vital skills for the business in the U.S.
Determining Specialized Skills for E Visa Classification: When a business identifies a need for a particular set of skills for its operation, it must then ascertain whether these skills are indeed specialized. If determined as specialized, the visa applicant has to demonstrate that they genuinely possess these skills. The following factors aid in evaluating the specialized nature of the desired skills and the applicant’s proficiency in them:
Experience and Training: Review the amount and type of experience and training needed to attain such skills.
Uniqueness of Skills: Determine how unique or rare these skills are. The more uncommon, the more specialized they are likely to be.
Availability of U.S. Workers: Consider whether there are available U.S. workers who possess these skills. A lack of skilled local workers can strengthen the case for the specialized nature of the skills.
Salary Implications: Look at the salary that such specialized expertise can fetch in the market. A higher salary can often indicate a higher demand for such rare skills.
Applicant’s Experience with the Treaty Enterprise: Assess how long the applicant has been involved with the treaty enterprise, as a longer association can often indicate deep-rooted expertise.
Training Duration: Reflect on the time necessary for training or other experiences vital for the applicant to perform the designated duties effectively.
Relation to the Enterprise’s Operations: Examine how the skill or knowledge ties into the business’s unique processes or applications. Also, reconsider the salary that such unique qualifications can demand.
Language and Culture Knowledge: Understand that merely having knowledge of a foreign language and culture isn’t enough to meet the specialized qualifications criteria. Other skills or expertise are required.
Degree of Proven Expertise: Gauge the level of established expertise the applicant has in the specialization area. This involves not just claims but tangible evidence of proficiency.
Job Function: Consider the role or job to which the applicant is being assigned. The job’s nature can often shed light on the specialized nature of the skills required.
Essentiality of Ordinarily Skilled Workers for E Visa Classification: Sometimes, the need for workers isn’t strictly based on having specialized skills, but rather on their essentiality to the business’s operations, especially during crucial phases such as start-ups or training.
Start-up or Training Purposes: Even workers with ordinary skills can be seen as essential when they are integral for initiating business operations or for training purposes. Their role is often time-bound, aligning with the phase of the business that requires their expertise.
New Ventures and Business Expansion: A new business, or an existing one branching out into a fresh field in the U.S., may necessitate employees with conventional skills but specific knowledge. Their requirement might be temporary but critical during the initial stages of the business or new endeavor.
Familiarity with Overseas Operations: The crux of their essentiality often springs from their deep understanding and familiarity with the company’s operations in other countries. This intrinsic knowledge can be pivotal for ensuring that the U.S. operations align with the company’s global standards and practices.
Nature of Skills: The focus here is not on high-level, specialized skills but more on the intimate knowledge of the intricacies and peculiarities of the company’s operations. This nuanced understanding can sometimes be more valuable than conventional specialized skills, especially during the early stages of a business or when entering a new market.
In essence, the “essentiality” of an employee does not always stem from the specialized nature of their skills. In many cases, especially during transitional phases for a business, the familiarity and nuanced understanding of a company’s operations can be deemed just as essential.
Previous Employment with E Visa Firm:
No Mandatory Past Employment: For essential employees under the E visa classification, having prior employment with the applying firm isn’t mandatory. This is except for workers whose essentiality is based on their familiarity with the firm’s operations abroad.
Focus: The core consideration is whether the individual possesses the specialized skills crucial for the firm’s U.S. operations. It’s acknowledged that companies may need certain skills even if no current employees possess them.
Documentation Requirements: The government may ask for various documents to ascertain the specialized nature of the desired skills. They might want statements or confirmations from chambers of commerce, labor organizations, trade sources, or state employment services regarding the scarcity of such skills within the U.S. labor market.
Duration of Essentiality:
Establishing Duration: It’s the applicant’s responsibility to clarify not only their possession of the necessary specialized skills but also the duration for which these skills are vital to the business.
Varying Duration of Need: Some skills might be essential throughout the business’s existence. In contrast, others might be temporarily crucial, like during a business’s inception phase. After initial operations stabilize, locally hired employees might be trained to take over specialized roles.
Evaluation Considerations: To assess the projected period of a skill’s essentiality, factors like the time required to onboard and train the applicant, and the time they’d need to fulfill their duties should be evaluated.
Evolution of Skill Essentiality: Skills crucial for launching a business may lose their essentiality once the business is well-established. Similarly, rapidly evolving industries may see a shift in what’s considered “specialized” over a short span of time.
Proof of Duration: If the need for an applicant’s skills is time-bound, officials might request evidence highlighting the period these skills will be needed, coupled with a probable end date when these skills might no longer be essential.
Examples of Essentiality Duration:
Long-term Need: Employers might require a skill on a continual basis, especially if the roles involve continuous product improvement, quality control, or offering a unique service not widely available.
Short-term Need: Skills may only be required for a short span (e.g., a year or two), especially if they’re linked to the startup phase of a business or its new ventures, or they relate to the training and overseeing of technicians.
Start-up Operations Time Frame: Employees pivotal for initiating operations of treaty enterprises are generally expected to achieve their goals within two years. Unless there are exceptional situations, such employees might not be granted extensions beyond this timeframe.’
This breakdown underscores the nuanced nature of determining an employee’s “essentiality” under the E visa classification, balancing both the specialized nature of their skills and the time frame during which these skills are indispensable.
Precedent Decision – Matter of Udagawa, 14 I&N Dec. 578 (BIA 1974). Applicant for admission who will supervise and train American workers as tempura cooks at a Japanese restaurant and assist in the preparation of meals during the training period is inadmissible as an employee of a treaty investor because he will not be employed in a “responsible capacity” with the meaning of 22 CFR 41.51.
Precedent Decision – Matter of Kobayashi and Doi, 10 I&N Dec. 425 (District Director 1963; Regional Commissioner 1963; Deputy Associate Commissioner 1963). Managerial employees charged with the training or instruction and supervision of entertainers and waiters in a theater restaurant are not employed in the “responsible capacity” as required by 22 CFR 41. They are not properly classifiable as nonimmigrant employees of a treaty investor.
Precedent Decision – Matter of Nago, 16 I&N Dec. 446 (BIA 1978). Where the applicant for admission is a highly trained chef who is engaged in a specialized form of Japanese cooking (Nabemono) and has been brought to the U.S. to impart his knowledge, the BIA concluded that the applicant is employed by a treaty investor in a responsible capacity and therefore qualifies as an E-2 nonimmigrant.
8.Intent to Depart Upon Termination of Status.
When someone applies for an E visa, they don’t need to prove they’re only coming to the U.S. for a short time. They also don’t have to keep a home in their original country. In fact, they can even sell their house and bring all their stuff to the U.S. The applicant’s expression of an unequivocal intent to depart the U.S. upon the termination of E status with a signed statement is normally sufficient.
However, if they have also applied to permanently live in the U.S. (for example, through a family member), they need to make it clear they still plan to leave after their E visa is done. They cannot just stay in the U.S. and try to become a permanent resident without going through the right process.
[8/5/97, Virtue] INS Advises on Dual Intent Memo (including E): Based on the language contained in the statute and the supporting regulations, an E-1, E-2, H-1B, or an L-1 nonimmigrant alien (and any of such person’s derivatives) may maintain status or obtain an extension of temporary stay while, at the same time, pursuing an application for adjustment of status. Therefore, an application for an extension of stay that is timely filed on behalf of an E-1, E-2, H-1B, or L-1 nonimmigrant alien may be approved in spite of the alien’s pending application for adjustment of status. Note that H-1B and L-1 nonimmigrants with pending adjustment applications remain subject to statutory limit on the duration of such status (set forth in INS sections 214(g)(4) and 214(c)(2)(D)(i) and (ii) respectively) and along with E nonimmigrants must continue to observe the requirements of their nonimmigrant status, including limiting employment to the designated employer. Also, pending a change in 8 CFR 245.2(a)(4)(ii), an E-1, E-2, H-1B, or L-1 nonimmigrant must continue to follow the requirement of obtaining advance parole for travel outside of the United States in order to avoid automatically abandoning his or her adjustment application.
Change of Status vs. Consular Processing for E-2 Visas
E-2 applicants can apply through two different formats. If outside of the US, they apply for an E-2 vias at the US consulate abroad. If in the US, and satisfying other immigration requirements, they can request Change of Status.
Note that the period of admission (time allowed in the US) for any E-2 holder is 2 years. Before expiration, they must either request a formal extension with USCIS or have a valid visa for exit and reentry. However, maximum time in the US is limited to 6 months beyond the passport expiration (with exceptions for some countries).
E-2 Visa through Consulate (Outside the U.S.)
This method is generally preferred because most visas will be issued for longer lengths of time (depending on the passport of the applicant) and thus require more time between renewals.
However, each U.S. consulate will have its own procedures and culture for E-2 applications and approvals. For example, some limit the number of pages allowed as part of the submission package. Some will allow you to schedule an interview date, while others will notify. These procedures can change without warning.
To apply, the consulate-specific procedures must be consulted. But typically requires a completed Form DS-160, pre-submission of the E-2 application, and registration of the company and/or the applicant.
E-2 through USCIS (Change of Status Inside the U.S.)
If approved, the E-2 applicant must still apply for and submit a full visa application at the consulate if they leave and reenter, with the exception of those travelling to contiguous lands within 30 days (there are more nuances to this).
The application form is I-129 and submitted by the company/petitioner. Premium processing (Form I-907) is permitted for this case type. Dependents will need to file a Form I-539 together or separately, depending on circumstances.
Note that leaving while the case is pending will lead to abandonment. Appeal of USCIS determination is not permitted.
Dependents: What About My Spouse and Kids?
The Dependent classification for this visa category is also E-2.
The spouse and minor children accompanying or following to join a treaty trader or treaty investor shall be admitted for the period during which the principal alien is in valid treaty trader or investor status.
The temporary departure from the U.S. of the principal trader or investor shall not affect the derivative status of the dependent spouse and minor unmarried children, provided the familial relationship continues to exist, and the principal remains eligible for admission as an E nonimmigrant to perform the activity.
The Applicant can only engage in employment consistent with the terms and conditions of the E-visa status.
Precedent Decision – Matter of Laigo, 15 I&N Dec. 65 (BIA 1974). A treaty investor is precluded from engaging in unauthorized employment by the provisions of both 8 CFR 214.1(e) and 8 CFR 214.2(e). Unauthorized employment constitutes a failure to maintain status.
Subsidiary employment. Treaty employees may perform work for the parent treaty organization or enterprise, or any subsidiary of the parent organization or enterprise.
Performing work for subsidiaries of a common parent enterprise or organization will not be deemed to constitute a substantive change in the terms and conditions of the underlying E treaty employment if, at the time the E treaty status was determined, the applicant presented evidence establishing:
(A) The enterprise or organization, and any subsidiaries thereof, where the work will be performed; the requisite parent-subsidiary relationship; and that the subsidiary independently qualifies as a treaty organization or enterprise under this paragraph;
(B) In the case of an employee of a treaty trader or treaty investor, the work to be performed requires executive, supervisory, or essential skills; and
(C) the work is consistent with the terms and conditions of the activity forming the basis of the classification.
Country Specific E-2 Requirements
Some U.S. consulates have set up an E visa company registration programs/databases:
United Kingdom: The Convention, which entered into force on July 3, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands, and Gibraltar) and to “inhabitants” of such territory. This term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” Also, to qualify for treaty trader or treaty investor status under this treaty, the applicant must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty. (Instructions 2023-09)
Notifying the Government: Changes in Your E-2 Company Conditions
Major Changes (Substantive changes):
If big changes happen in your E status, like if your company merges or is sold, you need to get a thumbs-up from USCIS.
You can either:
Fill out a new form asking to stay longer in the U.S. and show you still qualify for the E visa.
Or, get a new visa showing these changes and then come back into the U.S.
Smaller Changes (Non-substantive changes):
If little things change in your job that do not affect your E visa status, you don’t need to get approval.
However, if you are traveling:
You can show a letter from your company explaining the small change.
Or, fill out a form with the details of the change.
Or, ask the Department of State for a new E visa with the updated info.
If you don’t choose one of those three ways, you can still prove to the immigration officer when you arrive in the U.S. that everything’s okay with your E visa status.
Need Advice?
If you’re not sure if a change is big or small, you can ask USCIS for advice.
Send them an application with all the details about the change.
If many employees are involved, like if your company merged with another one, send a single form. Add a list of the other employees and explain the changes.
Getting the Green Light (Approval):
If USCIS says okay to your change in E status, they will send you a Form I-797.
Only after getting this approval, you can start your new job.
If you leave the U.S., you can come back with your still-valid E visa and the approval form or, in accordance with 22 CFR 41.112(d), where the alien is applying for readmission after an absence not exceeding 30 days solely in contiguous territory.
