How to Make the E-2 Investor Visa Work for Entrepreneurs and Small Businesses

Are you an investor or small business owner considering your immigration options in the U.S.? If so the E-2 nonimmigrant visa may be appropriate for you. In many ways the E-2 visa option is the most attractive for entrepreneurs and small business owners allowing foreign nationals to enter the U.S. “solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital”.

Eligibility Requirements

A. The applicant must be a national of a treaty country;

Individuals:
In order to qualify for E-2 investor status, the applicant must be a national of the treaty country. As of 2015, there are about 70 countries that have the treaty signed with the United States, but most notably neither Chinese nor Indian nationals qualify. In most cases this is fairly straightforward, however establishing nationally can be difficult under certain circumstances. When determining nationally is uncertain, we recommend checking the nationality laws of the applicant’s home country and the language of the relevant treaty.

Businesses:
In most circumstances, the nationality of a business is determined by the nationality of the individual owners of the business. A business that is at least 50 percent owned by nationals of the relevant treaty country will be eligible for E status visas. With respect to corporations, the country of incorporation is irrelevant to the nationality requirements. Since these general conditions become more complicated as businesses grow and develop, we recommend that you speak with one of our attorneys if you have any specific questions about your business. Please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.

B. The applicant must be an investor that is placing substantial capital into an “at risk investment” in a bona fide commercial or entrepreneurial undertaking for the purpose of generating a profit which the investor is irrevocably committed to; and

In our experience, the “substantial” investment can be satisfied with as little as $50,000 transfer to the U.S., however a safer and more feasible option would be a figure closer to $100,000. For the purposes of the E-2 visa, “investment” is defined as “the placing of capital including funds and other assets, at risk in the commercial sense with the object of generating a profit.” “At risk” is defined as “subject to partial or total loss if investment fortunes reverse.” It’s important to note that mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment will not be sufficient for the E-2 visas investment standard. However, capital held in a business bank account or similar fund, that is to be used for routine business operations, may be counted as irrevocably committed investment funds. The E-2 visa also requires the investment to be a qualifying business or investment venture which produces some service or commodity for profit in the United States. An applicant will not qualify when their investment is speculative in nature, and held for potential appreciation in value, such as an investor holding majority stock in a business without the intent to direct the venture. But our firm has assisted in many challenging E-2 visas, when parts of the investment came from outside investors, which is particularly important for entrepreneurs and start-up companies.

C. The applicant must be seeking entry into the U.S. solely to develop and direct the treaty business.
Accordingly, the applicant must have the ability to develop the business, this can be shown when the applicant owns at least 50 percent of the business, or when the applicant possesses operational control of the business through a managerial position or other corporate device. Relevant factors include ownership, control of stock by proxy, management position, authority, etc. An equal share, or partial ownership of the investment in a joint venture or equal partnership generally does not give an applicant controlling interest if the joint venture and partner each retain full management rights and responsibilities.

Are you unsure about whether your business investment would qualify you and your family for an E-2 visa? If so please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.