Treaty Investor Visa
The E2 Visa is for citizens of countries with which the United States maintains a Treaty Countries of Commerce and Navigation that are coming to the U.S. to make a substantial investment in a commercial enterprise that is not marginal in nature.
I have helped many clients get the E2 Visa for investments in various businesses, such as restaurants, pizzerias, and ice cream parlors. I am one of the very few (if not the only) Immigration Lawyers in New York to have been a business investor in E2 Visa status before becoming a U.S. Citizen.
I offer complete and personalized solutions for any kind of investments. My services include:
- Business Plan review;
- Company formation;
- Purchase of an existing Company;
- Commercial real estate leases;
- Visa petitions for the investor and his family.
Eligibility for the E2 Visa
The main requirements for obtaining the E2 Visa are that:
- The investment is substantial;
- The investment is made in a Company that is not (or will not become) marginal;
- The investor has control of the Company, meaning ownership of at least 50%;
- The investor proves the lawful source of the funds invested.
What is a “substantial” investment?
There is no bright line in determining whether an investment for E-2 Visa purpose is “substantial”. However, federal regulations set forth a number of criteria that can be relied upon by consular officers.
In general, an investment is substantial if:
- It meets the “proportionality test”;
- It is sufficient to ensure that the company can operate;
- It is large enough to plausibly allow the investor to develop and direct the company.
In addition, besides being substantial, an investment cannot be “marginal”. A marginal investment is one that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and their family. An E-2 visa investor must show that his company will become profitable (more than marginal) within 5 years.
Moreover, besides being substantial, an investment cannot be “marginal”. A marginal investment is one that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and their family. An E-2 visa investor must show that his company will become profitable (more than marginal) within 5 years.
There is no minimum amount to apply for the E2 Visa, but for investments below $80,000 it would be very difficult (but not impossible) to get approved. The E2 will be approved only if it can be shown that the Company will not only generate income sufficient to the investor and his family to make a living in the U.S. The showing of a clear path of the lawful source of the funds invested is crucial in any E2 Visa petition. Failure to prove the lawful source of funds is a common ground for the denial of the E-2 Visa.
Generally, your initial E-2 status will be valid for a maximum of two 2 years. Upon renewal, the visas are often granted for five years as long as the issuing US Embassy is satisfied that the business continues to meet the E-2 requirements. So long as eligibility continues, “E” status not only permits the visa holder to engage in the qualifying trade, but permits incidental activities as well, and to stay in the United States “indefinitely”, so long as the alien engages in the qualifying “E” employment.
The E2 visa is a non-immigrant visa and for this reason, this visa category cannot be used as the prerequisite for an application for permanent residence (Green Card) by the Treaty Investor, because the law prohibits the investor from petitioning himself.
However, if the investor has a business in the treaty country which continues to trade while the investor is in the US, the investor and his or her family may be able to qualify for Green Cards on the basis of a Multinational Manager application, after the U.S. business has traded for at least one year.
Investors can also consider other options to obtain a Green Card, after an initial E-2 visa including:
- Sponsorship by a close relative.
- Sponsorship by a prospective employer.
- Making an investment of $1.8 million (or $900,000 in a rural area or area of high unemployment) in a business.
E2 Visa Spouse and Children
Spouses and children of E2 visa holders are eligible to come to the U.S. as the E-2’s dependents. These dependents can also continue to extend their status for as long as the principal E2 visa holder. The spouse and children of an E-2 Visa holder can be citizens of any country, and not necessarily of a Treaty Country.
Please keep in mind that the U.S. has E2 trade treaties with fewer than 100 countries. You must be a national of one of the enumerated countries in order to qualify for the E-2 visa. This requirement cannot be waived or excused for any reason.