E-2 Treaty Investor Visa

The E-2 Treaty Investor Visa is one of the most popular nonimmigrant visas for those seeking commercial and investment opportunities in the U.S. As with most of the visas that make up America’s complex visa regime, there are several requirements and procedures that must be fulfilled in order to qualify, making it imperative that you consult with an immigration attorney who specializes in this invaluable entryway to the U.S.

Requirements of the E-2 Treaty Investor Visa

There are three main prerequisites for getting approved for the E-2 Visa:

1. Be the citizen of a country that has a commercial or navigation treaty with the United States government
2. Have an investment, or investment plan, that consists of a “substantial” amount of capital in an American enterprise located in the U.S.
3. Have plans to enter the U.S. for the sole purpose of developing and directing the investment enterprise.

As you may have noticed, some of these requirements are rather ambiguous. Which countries have signed the necessary treaties? How much is a “substantial” amount as far as business investment goes? What constitutes a sufficient level of developing or directing a business and how is this determined? Failure to meet these fine yet crucial details can mean the difference between approval and rejection.

What are the E-2 Treaty Investor Visa Countries?

This is the most straightforward of the requirements: only individuals whose country of origin has signed commercial or navigation treaties with the U.S. can apply to the E-2 Visa. You can find a list of these countries on our website: www.jflawfirm.com/e-2-visa-countries, which range from Australia to the United Kingdom. Given the vagaries of diplomatic relations, you may be surprised to find countries like Albania and Cameroon qualifying, however not China or India.

What is a Substantial Investment Under the E-2 Treaty Investor Visa?

In broad terms, an investment is characterized as any placement of capital in a business or commercial venture for the purpose of generating a profit, so nonprofit ventures do not qualify. The funds or assets you are investing must be subject to a risk of loss if the investment fails. You must also prove that these funds are not obtained from illicit activity, although gifts and other legal transfers are acceptable.

As to what is classified as a substantial amount, the U.S. government does not spell out an exact numerical value. Rather, this requirement is met in the following ways:

• Substantial compared to the total cost of forming a new business or purchasing an existing one
• Substantial as far as being pivotal to keeping the business in operation or growth
• Substantial enough to support the business’ growth and development, namely through the hiring of more employees

In short, what is considered “Substantial” is largely relative and is determined on a case-by-case basis. You can plan to invest as little as $70,000 and still qualify if this amount happens to fulfill a crucial expansion or operation of the enterprise.

Federal guidelines also make clear that the target of these investments must be a “Bonafide Enterprise,” meaning that it must be an active and legally recognized commercial venture that provides good and services for a profit. The business must meet all the relevant legal and regulatory requirements of its jurisdiction.

As far as directing and controlling the business, this is best proven by owning at least half of the company and serving an executive or managerial role.

Marginal Enterprises Need Not Apply

If the business investment is not sufficient to support anyone else besides the applicant and their family, it is classified as a “Marginal Enterprise,” which is prohibited for the E-2 Treaty Investor Visa. However, if you present a detailed plan showing that your investment will ultimately lead to the growth of the business — including new personnel — within five years of applying, you can satisfy the requirement. Your Jurado & Farshchian attorney can assist you in devising an effective business plan to help you qualify.

Period of Stay

Applicants will be granted an initial maximum stay of up to five years, with extensions granted in increments of up to two years each. While there is no limit to the number of extensions you may be granted, you are required to express an intention to eventually leave the U.S. upon the expiration or termination of your E-2 Visa status.

The Pros and Cons of the E-2 Treaty Investor Visa

If you are still considering whether the E-2 Visa is right for you, take into account the following benefits:

• You can live and work in the U.S. legally in the business
• You can freely travel in and out of the U.S. during your stay
• You may qualify for multiple extensions, for which there is no maximum limit
• Your spouse and any unmarried children under 21 may accompany you and can apply to work in the U.S. or pursue an education without an F-1 Student Visa

However, there are also disadvantages:

• Only individuals from certain Treaty Countries can apply
• Two-year incremental extensions mean you will frequently have to re-apply depending on how long your venture requires you to remain in the U.S.