How to Get an E2 Visa in 2023: A Step-by-Step Process

Are you looking to make your entrepreneurial dream in the U.S. a reality? Although the U.S. does not have an official startup or entrepreneurial visa, there are various immigration pathways that can facilitate the goal of business ownership. In this blog post, we’ll outline a step-by-step process on how to qualify for an E2 investor visa. By the end, you’ll have a clearer understanding of the solid foundation necessary to qualify for E2 status and whether you may be a good fit for this immigration benefit.

Aside from the detailed substantive considerations below, the very first step when considering an E2 visa is verifying that the potential investor and potential enterprise share the same nationality (defined as citizenship for E2 visa purposes) and ensuring that a qualifying E2 treaty exists between the U.S. and the nationality country. This is a rather straight-forward analysis when dealing with a single potential E2 investor; however, it can get tricky when several business partners with various nationalities want to go into business together and seek E2 status.

Investing in Your Own Startup or Purchasing an Established Business:

Once investment eligibility is confirmed, the next decision centers on whether to invest in an established business (like a franchise) or a brand-new enterprise. Our blog entitled, “E2 Visa: The First Steps To Take,” provides some considerations for making this decision, such as market trends, etc. When opening a brand new business through investment, keep in mind that preparing a formal business plan will be necessary and can usually be arranged with vendors knowledgeable in business formation or E2 business plan writing at a cost of a few thousand dollars. A solid business plan will lay out details of the investment, such as a five-year financial projection, business model, market analysis, and operations objectives.

Funding the Business and Establishing a Qualified Investment

Developing and directing the operations of an enterprise in which one has invested or is in the process of investing entails demonstrating where the money to do so comes from. In other words, a key part of the application process consists of proving that the investment funding comes from a legitimate source, is controlled by the applicant, and is in the applicant’s lawful possession. Some examples of lawfully obtained funds include an inheritance from a deceased relative, capital acquired through time in savings, or funds acquired through sale of personal property. Illegitimate sources of funds include money from prostitution, racketeering or crime. Documenting funding sources is important and can be done through bank account statements, proof of property sale, or personal loans whether secured or unsecured. Keep in mind that if the source of funding is coming from another investor, then that investor’s country of citizenship and investment amount will have to be analyzed to keep it from impacting the primary E2 applicant’s eligibility.

Once the funding mechanism is established and demonstrated, proving that the investment is ‘irrevocably committed’ and ‘put at risk’ is essential in establishing that the business is a qualified investment and that the investor has seriously considered the fact that losing the business will likely mean losing the investment.

Mechanisms of Investing and Amount of Substantial Investment

E2 visa status is meant to facilitate active for-profit enterprises that can provide a non-marginal or significant revenue stream to the E2 applicant and their family. In other words, an E2 investment is not appropriate for non-profit enterprises, land purchases put in holdings or other forms of passive investment. The E2 application should be able to speak to what service or product the investment will be providing. As we discussed in our blog entitled, “E2 Investor Visa Minimum Investment Amount,” the amount of the investment is always a question that is in the forefront of potential applicants. Although there is no bright-line test, several regulations and legal citations reference the investment amount, such as:

9 FAM 402.9-6(D)(b) in the Foreign Affairs Manual (FAM) that outlines a ‘proportionality test’ for substantiality of investment based on a sliding scale; or

9 FAM 402.9-6(E) which takes into consideration whether a business could potentially reach a non-marginal level of revenue within a certain amount of time (typically 5 years), thereby demonstrating viability even if not solvent at the time of the E2 application.

In general, however, an inverted sliding scale analysis is used when analyzing the funding amount: the lower the cost of the business, the higher the amount of the investment, and the higher the cost of the business, the lower the amount of investment to where just a 10% investment in a multimillion-dollar enterprise may suffice for E2 purposes.

Keep in mind that per 9 FAM 402.9-6(B)(h), ‘investing’ is not limited to cash; an investment can be in the form of intellectual property, equipment, or inventory. What is important is documentation and proof.

Changing Status v. Applying for E2 via Consular Processing:

Once the issues above have been addressed, the final factor to consider remains one of venue: whether to change status to E2 from within the U.S. or apply for E2 status abroad via a consular application. Although strategic considerations in individual cases may warrant a change of status filing from within the U.S. (especially if the potential E2 investor absolutely has no international travel plans), most applicants generally apply for the E2 visa abroad. The reason for this is because the Department of State considers the E2 visa to be in their purview. This means that if an applicant files and obtains an E2 change of status from within the U.S. but then leaves for international travel and attempts to obtain an E2 visa stamp at the consulate, the consulate may challenge the Immigration Service’s approval of the E2. If the two agencies do not agree on the E2 petition’s viability, then the E2 investor may face a situation where he or she is stuck abroad without the ability to operate their U.S. business. This situation is less of a concern for those applying for E2 employee status, which is different from E2 investor status.

We hope this step-by-step analysis of qualifying for an E2 visa has been helpful in providing a framework for potential investor eligibility in the U.S. If you found this information helpful, don’t hesitate to share it with others who might benefit from it. Our mission is to empower individuals with knowledge and provide in-depth insights into U.S. immigration. Stay tuned for more informative content in the future. See you next time!