E2 Visa Guide

An E2 Visa is a non-immigrant visa for entrepreneurs, investors, and those seeking to operate a business in the US. To qualify, one must invest a substantial amount in a US business and oversee its development. This visa is only available to citizens of countries with an E2 treaty with the US. E2 visa holders can work for and invest in a US business, with the option to start a new one or invest in an existing business. The visa has no renewal limit if the company meets the E2 requirements.

• With an E2 visa, it is possible to establish and operate a business in the US while working for it.
• If you secure an E2 visa, your spouse and unmarried children under 21 can also be eligible for E2 visas.
• An E2 visa holder's spouse can apply for work authorization to work in the US.
• E2 visa holders' children are allowed to attend school in the US.
• The required minimum investment amount to qualify for an E2 visa is not fixed, and investments as low as $50,000 or even less can be considered.
• There is no limit to the number of times you can renew your E2 visa, and some E2 visa holders may stay in the US for 15 years or more.
• Unlike other non-immigrant visas, it is not necessary to maintain a foreign residence to obtain an E2 visa.

• You must be a national of a country with an E2 treaty with the United States.
• You must have the intent to leave the United States at the end of your status.
• You must make a substantial investment in a US company.
• Your business must be for profit.
• The business that you invest in cannot be considered a marginal enterprise.
• You must be entering the United States to direct and develop your E2 business.
• The source of your investment funds must be lawful.
• Your investment must be irrevocably committed to the E2 business and must be at risk.

i. You must be a national of a country that has an E2 treaty with the United States.

To get an E2 visa, you must be a national of a country that has a qualifying treaty with the United States. (See the list below to see if your country of citizenship qualifies for an E2 Visa)

There are two ways to invest in the United States as part of the qualification for an E2 visa:

• You can make an investment in a US business as an individual
• Or your **foreign business can make an investment in a US business

AND

• You must be a citizen of a Qualifying Treaty Country.

Qualifying Treaty with the United States

The second part of this requirement is that there must be an E2 treaty between the US and the E2 investor’s country of nationality.

The list of all countries that have an E2 treaty with the United States is as follows**:**

• Albania
• Argentina
• Armenia
• Australia
• Austria
• Azerbaijan
• Bahrain
• Bangladesh
• Belgium
• Bolivia
• Bosnia and Herzegovina
• Bulgaria
• Cameroon
• Canada
• Chile
• Colombia
• 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
• Kosovo
• Kyrgyzstan
• Latvia
• Liberia
• Lithuania
• Luxembourg
• Mexico
• Moldova
• Mongolia
• Montenegro
• Morocco
• Netherlands
• New Zealand
• Norway
• Oman
• Pakistan
• Panama
• Paraguay
• Philippines
• Poland
• Romania
• Serbia
• Senegal
• Singapore
• Slovak Republic
• Slovenia
• South Korea
• Spain
• Sri Lanka
• Suriname
• Sweden
• Switzerland
• Taiwan
• Thailand
• Togo
• Trinidad & Tobago
• Tunisia
• Turkey
• Ukraine
• United Kingdom
• Yugoslavia.

Major countries that do not have an E2 Treaty with the US:

• Brazil
• China
• India
• Russia

ii. You must have the intent to depart the US once your E2 status ends.

• Generally, most non-immigrant visa categories require demonstrating non-immigrant intent.
• Demonstrating strong ties to your home country, such as owning a foreign residence or having a career, is often necessary to prove non-immigrant intent.
• Unlike other visa categories, an E2 visa applicant is not required to demonstrate non-immigrant intent.
• To fulfill the "intent to depart" requirement for the E2 visa, submitting a signed statement confirming your intention to depart the US after the conclusion of your E2 status is sufficient.

iii. You must make a substantial investment in a US company.

To qualify for an E2 visa, you must make a substantial investment in a US company.

• The regulations do not specify a minimum investment amount.
• Instead, a proportionality test (described below) is used to determine the substantiality of the investment.

Proportionality Test

• The proportionality test involves comparing two figures: the actual amount of money invested in a business and the total value of the business.
• For an existing business, the purchase price is typically its value, while for a start-up, it is the total cost of establishing the business to the point of operation.
• An immigration official will calculate the proportion between the actual investment and the total business value to determine whether the investment is substantial.
• A lower-value business will require a higher percentage of investment to be considered substantial, while a higher-value business may accept a lower investment percentage.
• Unfortunately, there are no specific percentages used to determine whether an investment is substantial.
• If the total value of the business is $100,000 or less, a 100% investment of the total value is required to be considered substantial.
• On the other hand, if the total value of the business is high (e.g., $10,000,000), an investment of $5,000,000 would likely be considered substantial, even though it is only 50% proportionally.
• The larger your investment is, the better chance that your investment will be considered substantial, and the stronger your case will be.

iv. Your E2 business must be an active, for-profit business.

• To qualify for an E2 visa, the business invested in must be an active, profit-making enterprise engaged in entrepreneurial activities. This may include companies that offer products or services for sale to generate revenue.

v. The business that you invest in cannot be considered a marginal enterprise.

To qualify for an E2 visa, the E2 business invested in cannot be a marginal enterprise.

• A marginal enterprise is a business that does not have the present capacity or the future capacity to generate enough income to provide more than an minimal living for the E2 investor and their family. [CFR Section 214.2(e)]
• Even if the business does not have the capacity to generate enough income, if it has a present or future capacity to make a "significant economic contribution" it is not a marginal enterprise. [CFR Section 214.2(e)]

There are 2 ways to prove that the E2 business is not a marginal enterprise:

• Show that the business is currently or will soon generate more than enough income to provide a minimal living to you and your family.
• Show that the business has or will make a "significant economic contribution." An example of this would be how many employees you have or plan to have.

Only certain E2 Visa investments are considered eligible - you need a qualified E2 Visa Attorney such as John N. Usher to help you determine the best option for you.

vi. You must be entering the United States to direct and develop your E2 business.

As an E2 investor, you are required to seek entry into the United States for the sole purpose of directing and developing the E2 business.

• You can satisfy this requirement by showing that you own at least 50% of the business.
• If you do not own the required amount of the business, you can still satisfy the requirement by showing that you have operational control of the business.
  • Operational control can be shown in a managerial position or equivalent.
• You cannot be a passive investor and qualify for an E2 visa.

vii. The source of your investment funds must be lawful.

All investment funds must be lawfully acquired.

• In addition to personal funds, the proceeds from a loan may also be used as investment funds for an E2 visa. However, the loan must be unsecured or secured by your personal assets. Loans secured by the assets of the E2 business will not be considered as investment funds. It is essential to document how the funds were earned to meet the eligibility criteria.

viii. Your investment must be irrevocably committed to the E2 business and must be at risk.

To obtain an E2 visa, you must invest funds that are "at risk" and "irrevocably committed" to the E2 business.

• This means that your investment must be actively invested in the business and cannot be guaranteed or retrieved easily.

At Risk

• To determine whether your investment is at risk, you should ask yourself how much money you would lose if the E2 business fails.

Investment is Irrevocably Committed

• Your investment funds must already be invested in the E2 business at the time of filing or in the process of being invested, and you must be close to beginning business activities.
• Your intent to invest without a current commitment is insufficient, and merely putting investment funds in a bank account is inadequate. However, a reasonable amount of funds kept in a business operating account can count toward your investment capital.
• To meet the irrevocability standard, you may use an escrow account with the release of funds conditioned solely on the approval of your E2 visa or E2 change of status.

Consult the E2 professionals at Usher Law Firm to understand the steps you should take to get your E2 visa first.

It would be best to consider many factors before deciding whether to change your status or go through consular processing. Before you decide which option to choose, you should discuss it with an immigration attorney.

Three main stages of the E2 visa process determine how long it will take:

• Document Gathering
• Legal Preparation
• Consular Processing or Change of Status

Evidence Gathering

• Once you hire an immigration attorney, they will review your case. They should provide you with a list of documents needed.
• The average client takes about one month to gather documents but this process can be done must faster, it depends on you.

Consular Processing/Change of Status

• Your application will then be sent to the US consulate of your home country.
• This can take around 60-90 days.
• A change of status through USCIS also takes 2 to 3 months however, a request for additional evidence (RFE) can slow down this process.

The E2 visa is typically issued with a validity period of 1 to 5 years. However, it is important to note that your status, not your visa determine the duration of your stay in the US. As an E2 visa holder, you will be granted an initial period of stay of up to two years each time you enter the US. If you need to stay longer, you can leave and re-enter the US to obtain another two years of status. There is no limit to the number of times you can renew your E2 visa, as long as your business continues to meet all the eligibility criteria for the visa.

If you are the main applicant for the E2 visa, you are allowed to bring your spouse and unmarried children under 21 years of age.

Your spouse and unmarried children will also be granted E2 status.

As a spouse, your partner is eligible to apply for a work permit to work in any legal capacity in the United States.

Your children can attend school in the US, but they are not permitted to work.

A noncitizen may get an E2 visa through employment with an E2 business enterprise.

There are generally three classes of employees that can get an E2 visa:

1. Executive Employees
2. Supervisory Employees
3. Employees with Special Skills that are essential to the E2 Enterprise

Yes it is possible, there are a few things to go over:

• The E2 visa is considered a non-immigrant visa, meaning it is temporary and does not directly provide a path to a green card.
• If you wish to obtain a green card, you must first adjust your status to an immigrant level. It's important to note that while holding an E2 visa, you must still maintain the intention to depart the US once your E2 status is terminated. However, being approved for an immigrant visa petition does not necessarily mean that you will be denied E2 status.
• This means that it is possible to apply for an immigrant visa or adjust your status while holding an E2 visa. With that in mind, let's explore the various options available for obtaining a green card.

Green Card Options:

EB-5 Visa

• The EB-5 visa is an investment-based immigrant visa. This means that it leads to a green card.
• The EB-5 visa requires you to invest a minimum of $1.8 million in a US business. Or, you can invest $900,000 if the investment is in a targeted employment area. Your investment must also lead to creating ten full-time jobs for US workers.
• The benefit of transferring from an E2 visa to an EB-5 visa is that, in some cases, your investment to get the E2 visa will count for your EB-5 visa.
• If you have already invested a lot of capital in the E2 business and created enough jobs, you may be able to get an EB-5 visa with little effort.

Family Based

• Your close family members that are US citizens or lawful permanent residents willing to sponsor you for a green card.

Spousal

• You may qualify for a green card if you enter into a legitimate marriage with a US citizen.

Employment-Based

• You may qualify for a green card if a US company offers you a job and sponsors your green card.
• The US employer would have to get a Labor Certification through the US Department of Labor.

EB-1 A

• The EB-1 A visa is for people with “extraordinary ability.”
• The benefit of this visa is that you can self-petition. This means you can apply for your green card without a company sponsoring you.

EB-2 National Interest Waiver

• The EB-2 visa is for people with “exceptional ability" or “advanced degree professionals.”
• The unique aspect of an EB-2 visa is that, along with an EB-2 access, you can apply for a “National Interest Waiver.”
• With a National Interest Waiver, you can apply for an EB-2 visa without a US company sponsor.
• To get a National Interest Waiver, you must show that it is in the national interest of the United States to allow you entry without a US company sponsor.