E-2 Visa Explained: What You Need to Know

 

Hello and welcome to today’s blog topic – the E-2 visa.  The E-2 visa enables foreign nationals of certain countries (known as “treaty investors”) to be admitted to the United States when investing in a U.S. business.

 

Overview of the E-2 Visas

 

There are three key general requirements to qualify for an E-2 visa, as follows:

  1. The treaty investor must be a national of a qualifying treaty country;
  2. The treaty investor must be investing “a substantial amount of capital”and meet other investment conditions; and
  3. The treaty investor must be investing in “a bona fide enterprise in the United States” that is not “marginal”.

 

Qualifying Treaty Countries

 

The treaty investor must be a national of certain countries with which the United States maintains a treaty of commerce and navigation.  The U.S. Department of State maintains a current list of qualifying treaty countries for purposes of an E-2 visa.  It includes Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Columbia, 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, Korea (South), Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Serbia, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.  If you are not a national of one of these 81 qualifying treaty countries (which would include nationals of such countries as China (People’s Republic), Cuba, Iran, Iraq, Korea (North), Libya, Russian Federation, Saudi Arabia, South Africa, and Syria), you are ineligible to obtain an E-2 visa.

 

“A Substantial Amount of Capital”

 

The phrase, “a substantial amount of capital”, is defined as follows:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one;
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

There is no “magic number” as to what constitutes “a substantial amount of capital”.  Thus, consular officers will have significant discretion in determining if the treaty investor has invested “a substantial amount of capital”.  Based on this discretion, it is often said that there is flexibility in the E-2 visa process.

 

Other Investment Conditions

 

First, the treaty investor will need to prove that the investment is derived from a lawful source of funds.  Wages, business income, proceeds from the sale of stock, or proceeds from the sale of real estate are among the examples of a lawful source of funds.  Second, the investment must be at risk.  An escrow is commonly used both for the investment to be at risk and the treaty investor to be protected.  With an escrow, if the E-2 visa is approved, the investment is irrevocably committed to the enterprise; if the E-2 visa is denied, the investment is returned to the treaty investor.

 

“A Bona Fide Enterprise in the United States”

 

To be “a bona fide enterprise in the United States”, the enterprise must be a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit.  In addition, the treaty investor must be seeking to enter the United States solely to develop and direct the investment enterprise.  The treaty investor can establish this point by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

 

“Marginal”

 

Related to the “bona fide enterprise” requirement, it is necessary to show that the enterprise is not “marginal”.  A “marginal” enterprise does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.  For a new enterprise, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 visa classification begins.  It is also helpful to rebut an argument that the enterprise is “marginal” if the enterprise is creating jobs in the United States.  Any visa filing that is related to the creation of U.S. jobs generally is favored by consular officers.

 

Period of Stay

 

The E-2 visa is a nonimmigrant visa, and not a green card, and thus does not grant a permanent right to stay in the United States.  However, as the initial period of stay with an E-2 visa can be two years, additional extensions of stay may be granted in increments of two years, and there is no limit to the number of extensions of stay that may be granted, an E-2 visa potentially can provide a treaty investor with the right to stay in the United States for a very long period of time.

 

Employees and Family Members of the Treaty Investor

 

Certain employees of the treaty investor and spouses and unmarried children under 21 years of age of the treaty investor also can be admitted to the United States based on the treaty investor’s E-2 visa.

 

Conclusion

 

If you are a treaty investor – a foreign national from a qualifying treaty country = who seeks to come to the United States to invest in a U.S. business, the E-2 visa can be an attractive option.

 

We thank you for reading this blog.  Please contact us with any questions.  We look forward to continuing to provide you with information about U.S. immigration law topics as your trusted source on U.S. immigration law.

 

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E-2 Visa Explained: What You Need to Know
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