E2 Visa Process for Startup Companies: Step-by-Step Guide

The E2 visa is a great option for investors and entrepreneurs looking to found a startup company. With an E2 visa, you can start a business in the USA and work for that business. As a startup founder, there are multiple steps that must be carefully followed to get an E2 visa.

In this guide, I’m going to discuss the E2 visa process for startup companies and the steps you need to take to get an E2 visa.

If you have any questions, feel free to email me directly at contact@ashoorilaw.com. I would be happy to answer your questions.

Introduction to the E2 Visa

The E2 visa is non-immigrant visa for investors who meet the E2 visa requirements. The basic concept of the E2 visa is that it allows an investor to invest a substantial amount of capital into a US business and run that business.

With an E2 visa, once you satisfy the E2 visa requirements, you can come to the United States, start a business or purchase an existing business, and work for that business.

In order to get an E2 visa, you must be a national of a country that has an E2 treaty with the United States. In addition, you must make a substantial investment in a US company.

Here’s a Breakdown of the E2 Visa Requirements:

1. You must be a national of a country that has an E2 treat with the United States.
2. You must make a substantial investment in a US business.
3. The business must be an active, bona-fide enterprise.
4. Your business cannot be considered a marginal enterprise.
5. Your investment funds must be put “at-risk.”
6. You must have obtained your investment funds lawfully.
7. You must direct and develop the E2 business.
8. You must have the intent to depart the United States once your E2 status ends.

Important Note:

To meet the E2 visa requirements, your E2 petition must be approvable when filed. This means that you must satisfy the requirements of the E2 visa before you file your petition.

Now that we’ve discussed the E2 visa requirements, lets discuss the E2 visa process and the steps to get an E2 visa.

Step 1 – Consult with an Immigration Lawyer

The first step you should take when preparing to meet the E2 visa requirements is to consult with an immigration lawyer. An immigration lawyer can review your particular situation to determine the best course of action to take. By consulting with an immigration lawyer first, you may learn that there is a far easier and better option for you to obtain your desired immigration benefits.

Step 2 – Set Up Your E2 Company

Once you determine that you qualify under the E2 visa requirements, the next step is to set up your E2 company.

By setting up the E2 company, I’m referring to 2 major steps:

• Form the Company

• Open a Bank Account for the E2 Company

Form the Company

• You can choose to set up your E2 business as an LLC, corporation, or other business formation.

• Make sure that you own at least 50% of the E2 business to help demonstrate compliance with the E2 visa requirements. To get an E2 visa, one of the requirements is that you direct and develop the E2 business. To satisfy this requirement, you should show that you have operational control of the business by showing at least 50% ownership.

Open a Bank Account for the E2 Company

• Once you’ve formed your company, the next step is to open a bank account for your E2 company.

• You will need a business bank account to operate the E2 company and document compliance with the E2 visa requirements.

• Additionally, bank records for your business bank account will form an essential component of the evidence needed for your E2 visa application.

Am I Allowed to Set-Up a Company Before my E2 Visa is Approved?

• One of the most common questions I get asked by E2 applicants, is if they are allowed to set-up the company and open the business bank account for their E2 company before the visa is approved.

• To give a brief answer to this question: You are allowed to set-up a company in the USA. This means that you can form the LLC or corporation and open the business bank account.

• These initial actions are considered “setting-up” the business and are not considered work.

• However, you are not allowed to work in the USA without work authorization.

• Unless you have work authorization, you are not allowed to operate your business, work for your business, or manage your US business. These actions must wait until your E2 visa is approved and you are granted work authorization.

Step 3  – Transfer Investment Funds into the Bank Account of the E2 Company

• Once you’ve set up the business bank account, the next step is to transfer your investment funds into the business bank account.

• To qualify for an E2 visa, you must make a substantial investment in a US business.

• Proving that you’ve made a substantial investment begins with actually depositing the investment funds into the business account.

• While there is no set minimum amount required by the regulations, investing at least $100,000 often strengthens your compliance with the E2 visa requirements.

Step 4  – Begin Spending the E2 Investment Funds

• Now that your funds are deposited into the E2 business bank account, you should begin to spend the funds on inventory, equipment, supplies, marketing, and any other business expenses.

• One of the central E2 visa requirements is that your funds must be “at-risk” and “irrevocably committed” to the E2 enterprise. To satisfy this requirement, you should actually spend the investment funds.

• It is not sufficient to just deposit the funds into the business bank account. You must actually spend the funds.

• If the funds remain in the account at filing, you may fail to meet the E2 visa requirements regarding the at-risk investment standard.

Important Note:

Most entrepreneurs find it extremely difficult to spend funds on the E2 business before the E2 visa is approved. They wonder what they would do in the event that the E2 visa is not approved, and they are stuck with equipment, inventory, and furniture that they cannot use. While this is a legitimate concern, it is precisely how the E2 visa process works.

The at-risk component of the E2 visa requirements was put in place to ensure an investor’s commitment to the success of the E2 business.

The immigration officer reviewing your case will evaluate whether you properly satisfied the E2 visa requirements concerning at-risk investment funds, meaning that your funds are subject to total loss. In reviewing your E2 visa application, the immigration officer will ask themselves, “if this business were to fail, would the investor’s funds be lost?” If your funds are sitting in the operating account of the E2 business, it is clear that your funds would not be lost, indicating that your investment funds are not sufficiently at risk.

Per the E2 guidelines “mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not suffice.” [9 FAM 402.9]

Step 5  – Submit E2 Petition (Either Change of Status or Visa Processing)

Once your business is set up and your investment funds are spent, you are in position to file your E2 petition in compliance with the E2 visa requirements.

There are 2 options to consider:

• Change of Status Through USCIS

 
• Visa Processing at US Consulate

Here’s a quick breakdown of the difference between these 2 options:

Change of Status Through USCIS

• A change of status is the process of going from one non-immigrant status to another after meeting the E2 visa requirements.

• In order to do a change of status, you must be lawfully present in the United States in a valid non-immigrant status.

• Certain non-immigrant statuses are not eligible for a change of status such as the ESTA.

• A change of status is filed with USCIS through the Form I-129.

• Your immigration lawyer will prepare and file the Form I-129 along with all supporting documents demonstrating that you meet the E2 visa requirements (company documents, bank statements, etc.)

• The entire process is handled within the United States. You are not required to travel abroad.

• There is no interview when doing a change of status.

• By doing a change of status, you do not get an E2 visa, even if you satisfy the E2 visa requirements. Instead, you get E2 status.

• Your E2 status is only valid in the United States.

• E2 status does not give you the ability to travel in and out of the United States. If you travel outside of the US, you will lose your E2 status.

• There are limited exceptions which allow for travel to Mexico and Canada for less than 30 days.

• If you want to travel in and out of the USA and maintain your E2 status, you must first meet the E2 visa requirements and obtain an E2 visa.

Visa Processing at US Consulate

• If you are outside of the United States when filing your E2 petition, you will need to do visa processing.

• Visa processing is the process of applying for a US visa at a US Embassy abroad.

• To do visa processing, you will prepare and file a Form DS-160.

• Your immigration lawyer will organize and submit all of your supporting documents to the US Embassy of your home country.

• The embassy will review your documentation and then schedule a visa interview.

• At the interview, the consular officer may ask various questions regarding your investment, source of funds, etc.

• Upon successful completion of the visa interview, you should be issued an E2 visa within about a week.

• With an E2 visa, you can travel in and out of the United States for the period of the visas validity.

Conclusion

At this point, you should have a much better idea of the overall process to get an E2 visa as the founder of a startup company.

• Step 1 is to consult with an Immigration Lawyer

• Step 2 is to set Up Your E2 Company

• Step 3 is to transfer Investment Funds into the Bank Account of the E2 Company

• Step 4 is to begin Spending the E2 Investment Funds

• Step 5 is to submit the E2 Petition (Either Change of Status or Visa Processing)

This is quite a lot of information to cover. If you have questions about anything in this post, please feel free to email me directly at contact@ashoorilaw.com. I’m very responsive via email and would be happy to help you with your E2 visa.

Resources:

• E2 Visa Guide: Everything You Need to Know About the E2 Visa

• 9 FAM 402.9