Individuals entering the U.S. to direct and develop a U.S. company in which they have invested or are in the process of investing a substantial amount of capital can qualify for an E-2 visa. The individual must be a national of a country that has a treaty in existence with the U.S. (access the Department of State website for an updated list of countries with E treaties with the U.S., https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html) and at least 50% of the ownership of the company must be by treaty country nationals. E-2 Visas are also available to employees of a company as long as they are managers, executives or specialized workers.

Substantive Requirements

1. The Investment Must be Active. In order for an investment to qualify for the basis of an E-2 visa, the investment must be active, or must be used to produce a commodity or service. This means that an investment in land, for example, would not qualify since it would be considered a passive investment. It is acceptable to use an escrow account to protect the investor in the event the visa is denied, but the investor must present other evidence showing the investment will be active. In addition, the investor cannot just invest the capital and not take part in the actual managing or directing of the U.S. company. The investor must manage the business and must exercise controlling interest in the business.
2. The Investment Must be Substantial. Although neither USCIS nor the DOL cite specific amounts as substantial, they both use one of two tests to determine if the investment is substantial. USCIS and DOL regulations both require that the amount invested either be proportional to the total value of the business or that the amount invested be enough to establish a viable business in the particular field. Sometimes USCIS and the DOL use the following scale to determine whether an investment is substantial:
3. The Investment Cannot be Marginal.In other words, the investment must generate more than just enough income for the owner to make a living and must eventually be able to generate jobs in the U.S.
   • If the value of the business or the cost to start is less than $500,000, a minimum 75% investment is required
   • If the value of the business of the cost to start is between $500,000 and $3M, a minimum of 50% investment is required.
   • If the value of the business or the cost to start it over $3M, a minimum 30% investment is required.
4. The E-2 Visa Holder Must Have Nonimmigrant Intent. E-2s must have the intent to return to their home country after their authorized period of stay ends. However, unlike with many other nonimmigrant visa categories, this requirement can be met with only a statement to the consular officer stating their intent to return. It is not necessary to present evidence of continuing ties to the home country.

Processing

Unlike most other nonimmigrant visa categories, the E-2 visa does not require a petition with USCIS. To apply for an E-2 visa, an application must be submitted to the home country consulate. It is possible to apply for an E-2 visa through USCIS only if the investor is in the U.S. and is eligible to change status to E-2. However, a first time E-2 visa applicant will have to make an entirely new E-2 application to a U.S. consulate for an E-2 visa upon his or her first trip abroad, despite the fact that USCIS already approved their E-2 status in the U.S. Therefore, to avoid having to submit two E-2 visa applications, it is often preferable to apply for an E-2 visa the first time at the U.S. consulate.

E-2 visas are issued for up to five years but can be renewed indefinitely as long as the qualifying investment continues. Whether a visa is issued for the maximum amount of time depends on the applicable treaty and is also at the discretion of the embassy.

Dependents

Spouses and children of E-2s are eligible for E-2 dependent visas. Spouses of E-2 principals may apply for employment authorization once they are admitted to the U.S. in E-2 status. Finally, there are no restrictions on family members pursuing studies while in E-2 status.

This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm.  Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.