Applicants who plan to develop and direct the operations of an enterprise in the U.S. in which they have invested or are actively in the process of investing a substantial amount of capital, can apply for a treaty investor visa (E-2).
E-2 is a “dual intent“ visa which means the applicant can have both nonimmigrant and immigrant intent.
The category has more benefits than the L-1 category, since it’s not necessary to maintain a business outside the United States, and E-1/E-2 status can be renewed every five years without limits.
You can find the list of all treaty countries and how the nationally is determined for E-2 visa purposes in this article.
E-2 Visa Requirements
The E-2 visa is designed for foreign nationals coming to the U.S. to develop and manage the operations of a company in which an investor has already invested, or is actively in the process of investing, a substantial amount of capital.
To qualify for an E-2 visa, the applicant must establish the following:
- Existence of the treaty;
- Individual and/or business possess the nationality of the treaty country;
- Applicant has invested or is actively in the process of investing;
- Enterprise is a real and operating commercial enterprise;
- Applicant’s investment is substantial;
- Investment is more than a marginal one solely for earning a living;
- Applicant is in a position to “develop and direct” the enterprise;
- Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the U.S.; and
- Applicant intends to leave the U.S. when the E-2 status expires.
How to Prove “Source of Funds” for E-2 Visa
Each E-2 application must provide proof of the “source of funds”:
- Lawfulness of the source of applicant’s funds;
- Possession and control of the funds.
This can be demonstrated by submitting the following evidence:
- Savings statements from applicant’s home country;
- Sale of property in applicant’s home country;
- Tax returns;
- Proof of ownership.
To qualify as an E-2 investment, the funds or assets must be “at risk.”
Investment capital can be based on a loan, but the loan cannot be secured by the assets of the E-2 company.
Only personal loans may be used for E-2 purposes.
The funds must also be “irrevocably committed” to the E-2 company which means:
- The business is already using the investment, or
- The company is close to the start of business operations, at which point the investment will be used.
Besides cash investment, the E-2 investment can be in the form of equipment, inventory, or intellectual property.
Proof of the value of the equipment or inventory should be submitted with the E-2 application, as well as evidence of the “investment” of the inventory (for example, proof of inventory shipping to the U.S.)
E-2 investments cannot be passive investments or non-profit organizations.
They cannot be “paper organizations” or the purchase of land or other assets simply to be held.
The E-2 enterprise needs to be a real and active commercial enterprise that is going to produce services or goods.
The applicant should be able to document what service or product it will be actively developing and selling for a profit.
- For example, investing in land without any further business activity would not meet the E-2 visa requirements.
How Much Should be Invested in E-2 Business?
There is no minimum amount that an E-2 applicant needs to invest.
The government uses a proportionality test to determine whether the investment is substantial enough to expect the company to be successful.
Being “substantial” amount for E-2 purposes is:
- Substantial in a proportional sense as determined through the application of the proportionality test outlined below;
- 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 proportionality test weighs the investment amount vs. the cost of the business.
- For example, if the investment amount and the cost of the business are the same (for example, the investment pays for 100% of the business), then investment is substantial.
The proportionality test means that the lower the cost of the business the higher a percentage of investment is required.
- For example, a $100,000 investment into a company that costs $100,000 would qualify but so would a $10 million investment into a $100 million company based on the size of the investment.
Another requirement is that the company must be more than marginal.
It means that the enterprise should be capable of generating enough income to provide the E-2 applicant and their family with more than minimal means of living.
The potential of reaching more than a marginal profit should be feasible within five years which can be demonstrated by a business plan.
E-2 Visa Business Plans
An initial E-2 application for a new business should a business plan that contains:
- The business model;
- Business plan;
- Market analysis;
- Marketing plan;
- Operations details;
- Hiring projections;
- Job descriptions for key employees; and
- Five-year financial projections including sales, first year operating budget, and allocation of the invested capital.
Employees Eligible for E-2 Visas
One of the advantages of E-1 and E-2 visas is that certain employees of the company who share the same nationality as the enterprise can also obtain E visas.
- For example, an E-1 enterprise with Chile nationality can obtain E-1 visas for its Chile employees as long as certain requirements are met.
The employee is eligible for a E-2 visa if the following conditions are satisfied:
- Prospective employer meets the nationality requirement:
- if an individual, the nationality of the treaty country;
- if a corporation or other business organization, at least 50 percent of the ownership must have the nationality of the treaty country;
- Employer and the employee must have the same nationality; and
- Employer, if not residing outside of the U.S., must be maintaining E status in the U.S.
Second, the employee must fit the acceptable categories, which include:
- Supervisory employees (supervisors and managers);
- Essential employees.
The following factors can be considered when determining if an employee meets the E-2 visa eligibility requirements:
- The title of the applicant’s position;
- Its place in the company’s organizational structure;
- Duties of the position;
- Degree to which the applicant will have control and responsibility for the company’s overall operations or a major component;
- Number and skill levels of the employees the applicant will supervise;
- Level of pay;
- Whether the applicant possesses qualifying executive or supervisory experience;
- Whether the executive or supervisory element of the position is a principal and primary function and not an incidental or collateral function.
Essential employees, on the other hand, have specialized skills on which the company operations depend.
Applicants should include the following information with their applications:
- Detailed job descriptions showing the skills are specialized;
- Details on how the employee obtained the skills and is therefore qualified for the position.
The following factors will be considered when deciding if an applicant meets the “essential employee” definition:
- The experience and training necessary to achieve such skill(s);
- The uniqueness of such skills;
- The availability of U.S. workers with such skills;
- The salary such special expertise can command;
- The degree of proven expertise of the applicant in the area of specialization; and
- The function of the job to which the applicant is destined.
E-2 Visa Checklist of Required Documents
The following documents must be submitted with the E-2 visa application:
Type of documents
Examples of acceptable documents
Who provides it
Information about U.S. operations
U.S. company and foreign company
Information about operations abroad
E-2 investment information
Foreign company and U.S. company (if applicable)
Information about the proposed position
U.S. company and foreign company
Information about the applicant
Payment of fees
U.S. company or foreign company
E-2 Visa Application Process
An investor or an employee may apply for an E visa:
- At a U.S. consulate or embassy (“Consular Processing”), or
- If they are in the United States in another lawful status, the applicant may file a change of status to E-2 with USCIS (“Change of Status”).
Most applicants might choose the consular processing at a U.S. consulate because only the
U.S. Embassies can issue a visa.
USCIS can only change and extend the applicant’s status while in the U.S.
However, only the physical E visa stamped in an applicant’s passport allows them to travel in and out of the U.S., entering in E status each time.
If granted a change of status to E-2 by USCIS, the applicant will still need to get a visa stamp at a consulate or embassy once they travel abroad and want to re-enter the U.S.
The process of applying for an E visa with the U.S. Embassies abroad vary.
Many U.S. Embassies and Consulates provide instructions on how to apply for an E visa on their respective websites.
Spouses and Children of E-2 Visa Applicants
Spouses and unmarried children under the age of 21 years old are eligible for E-2 dependent visas.
They are not required to hold the same nationality as the primary E-2 visa applicant.
Spouses and children are allowed to study in the U.S., and spouses may apply for employment authorization by filing Form I-765 application with USCIS.