UNDERSTANDING THE E-2 REQUIREMENTS
Many of the core requirements of the E-2 visa require some explaining before
they may be understood. The main criteria include:
The treaty investor must possess the nationality of the qualifying Treaty
Country and must own at least 50% of the investment business in the U.S.
Alternatively, a company owned by Treaty Country nationals can own at least
50% of the investment business.
INTENT TO DEPART
The foreign national is not permitted to have an intent to remain in the U.S.
permanently at the time of applying for the visa and seeking admission at a
port of entry. E-2 applicants must satisfy a U.S. consular officer that they
intend to depart the U.S. at the conclusion of their E-2 status, and pursue
any future immigration opportunities at a consulate outside of the U.S.
INVESTED IN OR IN THE PROCESS OF INVESTING IN A NEW OR EXISTING U.S.
This requirement applies to the type of investment as much as it does to the
process of investing. Much like the “at-risk” requirement for EB-5 visas,
the E-2 mandates that applicants’ funds or those of the investing business
be irrevocably committed and subject to partial or total loss. Applicants
can demonstrate that investment funds have already been spent by submitting
proof of paid expenses, such as rent toward a commercial lease; or
alternatively, applicants can place investment funds in escrow, with release
conditioned on approval of the E-2 visa.
The investment can be in a new business or for the purchase of an existing
U.S. ENTERPRISE MUST BE REAL AND ACTIVE
The business in which the applicant invests must be engaged in the provision
of goods or services for profit.
INVESTMENT MUST BE SUBSTANTIAL
There is no minimum investment amount for E-2 visas; the amount invested must
simply be sufficient to create or develop the type of enterprise in
question. In order to determine whether an investment is substantial,
adjudicators apply a “proportionality test,” which compares the amount
invested to the total amount required to the cost of establishing the same
or similar business.
In other words, a $100,000 investment may not be sufficient to create a
sports arena. However, it may be more than enough to create a company that
develops applications for a mobile phone, or to open a small store. While
investments under $200,000 are permitted under this program, investors
should be aware that the less costly the business is to establish, the
larger the proportion of the total cost the investment must be in order to
be deemed “substantial.” A good business plan is critical to document that
the amount invested is substantial enough to create a successful
U.S. ENTERPRISE MUST BE MORE THAN MARGINAL
While there is no minimum job creation requirement, the business must be able
to create and sustain jobs for persons other than the investor and his or
INVESTOR WILL DEVELOP AND DIRECT THE U.S. ENTERPRISE
In simple terms, this means the investor must own at least 50% of the U.S.
enterprise. However, passive ownership is not enough. The investor must play
an active role in the business’s future development. In instances where no
single individual owns 50% of the enterprise, foreign nationals from the
Treaty Country must demonstrate a controlling interest in the business and
an ability, collectively, to develop and direct it. Note, however, that E-2s
are also available to persons who will serve in an executive or supervisory
capacity or as essential employees for an E-2 employer, and these
individuals are not under a requirement to invest, nor to show that they
will develop and direct the enterprise, as long as Treaty Country nationals
have made a substantial investment.