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:

NATIONALITY

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. BUSINESS

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 business.

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 business.

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 her family.

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.