E-2 Visa Guide for Treaty Investors and Business Owners

In this guide, I will discuss what you need to know about the E-2 visa.

If you have any questions about the E-2 visa, feel free to email me directly at contact@ashoorilaw.com. I’m very responsive via email and would be happy to answer your questions.

What is the E2 Visa?

The E-2 visa is a non-immigrant visa for investors, entrepreneurs, and people looking to run a business in the United States, and it is often referred to as an entrepreneur visa USA option for foreign investors. With an E2 visa, you can start a US business or invest in a US business and operate that business.

To get an E2 visa, you must invest a substantial amount of capital into a U.S. business and direct and develop that business in accordance with USA visa e2 requirements, as part of qualifying for an entrepreneur visa USA pathway. You can either start a new business or invest in an existing business to qualify for an E-2 visa.

The E-2 visa is only available to people from certain countries that have an E2 treaty with the United States, which are commonly referred to as E-2 treaty countries. (we will go over the countries that qualify for an E-2 visa down below).

There is no limit to the number of times the E-2 visa can be renewed, which makes it a flexible entrepreneur visa USA option for long-term business owners. So as long as the E2 business continues to operate and meet the E-2 visa requirements, an E-2 visa holder can continue to renew their visa and live and work in the United States.

What are the Benefits of an E2 Visa?

What are the E2 Visa Requirements?

There are 8 main requirements to qualify for an E-2 visa, and understanding the full list of E-2 visa requirements can help investors prepare a stronger application.:

1. You must be a national of a country with an E2 treaty with the United States.
2. You must have the intent to depart the US once your E2 status ends.
3. You must make a substantial investment in a US company.
4. Your E2 business must be an active, for-profit business.
5. The business that you invest in cannot be considered a marginal enterprise.
6. You must be entering the United States to direct and develop your E2 business, a leadership role similar to what is required for certain intracompany transfers under the L-1 visa category.
7. The source of your investment funds must be lawful.
8. Your investment must be irrevocably committed to the E2 business and must be at-risk.

i. You must be a national of a country with an E2 treaty with the United States.

To get an E-2 visa, you must be a national of a country that has a qualifying treaty with the United States.

To explain this concept, lets break this requirement into 2 sub-categories:

• Nationality
• Treaty with United States

Nationality

You must have the nationality of a country with a qualifying treaty with the United States.

You typically have the nationality of the country of your citizenship.

If your nationality is unclear, the nationality laws of your home country and the language of your home country’s treaty with the US will determine whether you qualify as a "national."

There are two ways to qualify for an E-2 visa:

• You can make an investment in a US business as an individual
• Or your foreign business can make an investment in a US business

Investment as an Individual

If you are investing in a US business as an individual, then you will be considered the E2 principal investor.

Your country of citizenship will determine whether you satisfy the nationality requirement.

If you are a dual national (you hold nationality of two countries) you may still qualify for an E-2 visa. You will have to apply for the E-2 visa based on the nationality of the treaty country.

Investment by Foreign Business

If your foreign business is making the investment in the US business, the foreign business will be considered the E-2 principal investor.

The nationality of the business is determined based on the individual owners of the business.

To qualify for E2, the business must be at least 50% owned by nationals of the treaty country.

If less than 50% of the business is owned by nationals of the treaty country, it may still qualify for E2 if the business is restructured so that treaty nationals own at least 50% of the business.

Qualifying Treaty with the United States

The second part of this requirement is that there must be an E2 treaty between the US and the E2 investor’s country of nationality.

Here is the current U.S. Department of State treaty-country list for E-2 eligibility.

ii. You must have the intent to depart the US once your E2 status ends.

To get an E-2 visa, you must have the intent to depart the United States once your E-2 status ends.

For many non-immigrant visa categories, you are required to prove that you have non-immigrant intent.

To prove non-immigrant intent you are usually required to show strong ties to your home country, such as having a foreign residence, family in your home country, etc.

This is not required for an E-2 visa.

If you need any help with this, feel free to email me directly at contact@ashoorilaw.com

iii. You must make a substantial investment in a US company.

To qualify for an E-2 visa, which many view as an entrepreneur visa USA pathway, you must make a substantial investment in a US company, and many investors research the typical E-2 visa investment amount before applying.

The regulations do not specify a minimum investment amount that qualifies as substantial.

The Foreign Affairs Manual specifically states: “No set dollar figure constitutes a minimum amount of investment to be considered ‘substantial’ for E-2 visa purposes.” [9 FAM 402.9-6(D)]

Instead, a proportionality test is used to determine whether an investment is substantial or not.

Proportionality Test

The proportionality test compares 2 numbers: the amount of money you actually invest in your business and the total value of the business.

The value of an existing business is typically its purchase price.

The value of a start-up is the total cost to bring the business to the point of being operational.

To determine if your investment is substantial or not, the immigration official working on your case will calculate the proportion between how much you actually invested in the business to the total value of the business.

For businesses with a lower value, your investment should be a very high percentage of the total value of the business to be considered substantial.

For businesses with a very high value, your investment may be a lower percentage of the total value of the business, to be considered substantial.

Unfortunately, there are no exact percentages used to determine what is substantial.

If you have any questions on your particular business, and whether your investment will be considered substantial, please email me directly at contact@ashoorilaw.com. I’d be happy to help analyze your investment

Rule of Thumb

As a general rule of thumb, at my firm, I like to see that at least $100,000 is invested in the business and put at risk when applying under an entrepreneur visa USA strategy.

However, investments for $50,000 and even lower have qualified for E2.

The higher your investment is, the better chance that your investment will be considered substantial, and the stronger your case will be.

iv. Your E2 business must be an active, for-profit business.

The business invested in for an E-2 visa must be an active, for-profit business to qualify under the entrepreneur visa USA category. The business must conduct some sort of entrepreneurial activity.

Examples of businesses that would meet this requirement include companies that sell some kind of a product or service for profit.

v. The business that you invest in cannot be considered a marginal enterprise.

To qualify for an E-2 visa, the E2 business invested in cannot be a marginal enterprise.

A marginal enterprise is a business that does not have the present capacity or the future capacity to generate enough income to provide more than a minimal living for the E2 investor and their family. [CFR Section 214.2(e)]

Even if the business does not have the capacity to generate enough income, if it has a present or future capacity to make a "significant economic contribution" it is not a marginal enterprise. [CFR Section 214.2(e)]

There are 2 ways to prove that the E2 business is not a marginal enterprise:

• Show that has the present or future capacity to generate more than enough income to provide a minimal living to you and your family.
• Show that the business has the present or future capacity to make a "significant economic contribution." You can prove this by showing that the business either currently employs or will employ multiple workers.

vi. You must be entering the United States to direct and develop your E2 business.

As an E2 investor applying through the entrepreneur visa USA framework, you are required to seek entry into the United States for the sole purpose of directing and developing the E2 business.

You can satisfy this requirement by showing that as the E2 investor, you own at least 50% of the E2 business.

If you do not own at least 50% of the E2 business, you can still satisfy the requirement by showing that you have operational control of the business.

You can show operational control by having a managerial position within the business. Other similar ways may also work.

You cannot be a passive investor and qualify for an E-2 visa.

If a foreign business entity is the E2 investor, it must show that it is directing and developing the E2 business.

E2 employees do not have to show that they are seeking entry into the United States to direct and develop the E2 business.

If two parties own equal shares in the business entity (50/50), they can still meet the “direct and develop” requirement. Both parties must have full management rights and responsibilities.

vii. The source of your investment funds must be lawful.

The funds that you use to invest in your E2 business must have been obtained lawfully to comply with entrepreneur visa USA regulations.

You can also use the proceeds from a loan as your investment funds. The loan must be either unsecured or secured by your personal assets.

Loans secured by the assets of the E2 business will not qualify.

You must be able to sufficiently document how the funds were earned.

viii. Your investment must be irrevocably committed to the E2 business and must be at-risk.

To get an E-2 visa under the entrepreneur visa USA classification, you must make an investment that is at risk and your investment funds must be irrevocably committed to the E2 business.

Basically, what this means is that your investment funds should actually be spent toward the business and should not just be sitting in your operating account.

At Risk

To satisfy the at risk requirement, your E2 investment funds must be subject to either partial or total loss.

This means that there can be no guarantee that you will get any part of their funds back.

Investment is Irrevocably Committed

Your investment funds must be already invested in the E2 business at the time of filing or they must be in the process of being invested in the E2 business at the time of filing.

You must also be close to starting actual business activities.

This is to ensure that you, as the E2 investor, are committed to the success of the E2 business.

Your intent to invest, without a present commitment is insufficient. Also, putting the investment funds in a bank account, without an actual commitment, is not enough to qualify for an E-2 visa.

That said, a reasonable amount of funds kept in a business operating account can qualify toward your investment capital.

To meet the irrevocability standard, in certain cases, you may be able to place the investment funds in an escrow account. The release of the funds can be solely conditional on the approval of your E-2 visa or E2 change of status.

What is the Process of Getting an E2 Visa?

There are three main stages of the E-2 visa process that determine how long it will take:

Document Gathering

Once you hire an immigration attorney, they will review your case. They will then provide you with a list of all the documents they need from you to file your E2 visa application.

The gathering of documents takes clients around 1 month. This can be much faster or slower depending on you.

Legal Preparation

Once you send the documents to your immigration attorney, they will take about two weeks to prepare and complete everything. They will then file your completed E2 petition.

Consular Processing/Change of Status

Your application will then be sent to the U.S. consulate of your home country (consular processing). Or, if you are in the U.S., you can change status to E2 status (change of status) by sending your application to USCIS.

Consular processing takes around 1–4 months, depending on the consulate’s workload and country-specific factors.

A change of status through USCIS may take several months, depending on USCIS workload. Premium processing may be available for eligible filings by submitting Form I-907 and paying the current USCIS premium-processing fee.

USCIS premium processing requires agency action within the applicable premium-processing timeframe, and a request for evidence can stop and restart that clock.