The E-2 treaty investor visa is one of the most useful and simultaneously complex categories of nonimmigrant visas. Here is a list of the most common questions we receive from clients. These answers are not legal advice but educational in nature and meant to aid those who are attempting to understand whether or not the E-2 visa is right for them. Please contact us for individual, tailored advice for your situation.
1. What is substantial investment?
Substantial investment is defined as an amount that is:
(1) Substantial in a proportional sense, ... i.e., substantial in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;
(2) Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and
(3) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E-2 visa purposes. [9 FAM 402.9-6(D)]
But what does that mean? And how do you know if you have invested enough to pass the threshold?
Simply put, substantial investment is one of the trickiest points of applying for an E-2. The embassy or consulate will look at many factors in deciding what it means including the type of business started, how many people it plans to support, and where it is located. It will compare this amount with how much of the overall costs the investor has invested. The lower the overall start-up costs needed based on the business, the higher the percentage of funds the investor should seek to commit.
A good US Immigration Lawyer can go through your investments and advise on how to best spend money. To best utilise his or her expertise, I would advise instructing a lawyer early in the process and creating a timeline and game plan for investment. In choosing whom to instruct, it is often worthwhile to hire an attorney with familiarity of the embassy or consulate where you will be applying.
For more on substantial investment, please read our blog post solely on the topic here.
2. What makes a business marginal?
One criterion of an E-2 application is that a business may not be considered marginal. This means that the business must do more than simply provide financially for the investor and his or her family.
To look at whether or not a business is marginal, the E-2 officer will mainly assess two factors - profits and employees. He or she will be looking for the following: whether the investment will expand job opportunities, generate other sources of income, and generate income substantially above what would be considered a living, and that the investor will not work simply as a skilled or unskilled labourer.
If the business is new (as many are), a detailed business plan with a five year projection of profits and employees hired must be included.
For more on marginality, please see our blog post on it here.
3. Does my business need to be up and running at the time I apply for an E-2 visa?
Yes. At the time of filing, the company must be real and operating. This means that the business must have all of the applicable local, state and federal licenses.
4. Can my spouse and children get visas as well?
Yes, on an E-2 visa the spouse and minor children (unmarried children under the age of 21) of an E-2 visa holder may also apply for derivative visas. Important for many families, the spouse may also apply for a work permit (EAD) once in the United States. The EAD card generally poses no restrictions on the type of employment.
If you and your spouse are both potential E-2 visa holders, it may serve you well to consider the individual earning potential of each of you before deciding who should apply for the visa.
5. What kind of business can I run with an E-2 visa?
The E-2 visa is quite flexible when deciding what type of business to run. Both service and sales companies are eligible for E-2 registration.
One limitation to businesses is that it must not be a passive investment, i.e. simply buying property or stocks. It is also worth noting that nonprofit associations are not commercial enterprises so will not qualify for E-2 status.
6. How long is the visa good for?
Upon approval, the visa will be initially granted for anywhere from 1-5 years. For small businesses, the London embassy generally grants an initial approval of 1-2 years. Extensions are for 5 years at a time. There are currently no limitations on extensions.
It may be that the E-2 visa isn't the right visa for you or your company. For instance, if your company already has substantial trade with the US, you may qualify for an E-1 Treaty Trader visa.