Is It Hard To Get An E2 Visa?

The E2 visa is an excellent option for investors and entrepreneurs looking to come to the United States to direct and develop their business. Our law firm is especially well-versed in these types of cases. We have had the opportunity to work with investors and entrepreneurs from across the world in these matters. However, clients may often ask before proceeding just how difficult obtaining an E2 visa really is.

In this guide, I’m going to discuss what is required for a successful E2 case and try to clear up some of the common concerns that applicants may have before going forward with the E2 process. After reading, you should have a better understanding of common E2 concerns, and how working with an experienced immigration attorney can alleviate your issues. 

If you have any questions about the E2 visa, feel free to email me directly at Michael@AshooriLaw.com or you may request a free consultation by clicking this link. I’m very responsive via email and would be happy to answer your questions.

Overview:

1. The E2 Visa and its Requirements
2. Certain Benefits of the E2
3. Investment as an Individual vs. Investment by a Foreign Business
4. How Hard is it to Get an E2 Visa?
5. Applying for the E2 Visa from within the U.S. vs. Applying at a Consulate
6. Conclusion

1. The E2 Visa and its Requirements

The E2 visa is a nonimmigrant classification that allows certain foreign nationals the opportunity to come to the United States to direct their business. E2 applicants have the ability to bring their immediate family members with them, such as their spouse and children, as dependents. E2 applicants must first make what is termed a substantial investment in the E2 enterprise. The enterprise can be a new or existing business.

While there is no legal minimum investment for an E2 enterprise, it is highly recommended that the E2 applicant put forward at least $100,000 towards the enterprise. However, our law firm has seen success with cases with lower investment amounts. The investment can count as “substantial” in a number of ways:

• An investment can be considered substantial in a proportional sense based on how the amount of qualifying funds relates to the cost of the business
• An investment can be considered substantial if it is determined to be sufficient to ensure a financial commitment to the successful operation of the enterprise
• An investment can be considered substantial if it supports the likelihood that the investor will successfully develop and direct the enterprise

While it is important that a substantial investment is made, there are other things to consider.

The source of your funds must be lawful and well-documented. Examples of common ways applicants obtain funds include the sale of property, wages, or gifts. Loans can also be used, if certain conditions are met. You must document the source of your funds to the best of your ability in order to build a strong E2 case.

The funds must also be irrevocably committed to the enterprise, meaning they are at-risk. Funds cannot just be sitting a bank account waiting to be used for the purpose of developing a business.

The enterprise at stake cannot be considered marginal. A marginal enterprise is one that, in the present or future, may only generate enough income for the applicant. 

The E2 applicant must have a controlling interest in the enterprise as well, meaning at least a 50% percent ownership or stake.

An E2 applicant must also be a national of an E2 treaty country. A list of these countries includes:

• Albania
• Argentina
• Armenia
• Australia
• Austria
• Azerbaijan
• Bahrain
• Bangladesh
• Belgium
• Bolivia
• Bosnia and Herzegovina
• Bulgaria
• Cameroon
• Canada
• Chile
• Colombia
• Congo (Brazzaville)
• Congo (Kinshasa)
• Costa Rica
• Croatia
• Czech Republic
• Denmark
• Ecuador
• Egypt
• Estonia
• Ethiopia
• Finland
• France
• Georgia
• Germany
• Grenada
• Honduras
• Ireland
• Israel
• Italy
• Jamaica
• Japan
• Jordan
• Kazakhstan
• Kosovo
• Kyrgyzstan
• Latvia
• Liberia
• Lithuania
• Luxembourg
• Mexico
• Moldova
• Mongolia
• Montenegro
• Morocco
• Netherlands
• New Zealand
• Norway
• Oman
• Pakistan
• Panama
• Paraguay
• Philippines
• Poland
• Romania
• Serbia
• Senegal
• Singapore
• Slovak Republic
• Slovenia
• South Korea
• Spain
• Sri Lanka
• Suriname
• Sweden
• Switzerland
• Taiwan
• Thailand
• Togo
• Trinidad & Tobago
• Tunisia
• Turkey
• Ukraine
• United Kingdom
• Yugoslavia

Lastly, you must demonstrate that you have the intent to leave the United States upon expiration of your E2 status.

2. Certain Benefits of the E2

Benefits of the E2 include the ability to manage and direct the E2 enterprise, and the ability to bring immediate family members as dependents, as mentioned. Spouses of E2 holders also have the privilege of being able to apply for work authorization. With the E2 visa, you can stay in the United States for 2-year periods. The visa itself is valid for up to 5 years, meaning that you can enter and exit the United States freely with an E2 stamp in your passport. 

Some applicants, who are already in the U.S., may choose to change their status to E2 in order to gain the benefits associated with it. This status can be extended indefinitely. However, if an individual who has changed their status to E2 wishes to do  international travel, they must later do a consular application for E2 if they wish to return on that status (in most cases). Nonetheless, with consular processing, stamping in the passport can be given. It is recommended that individuals seeking the E2 visa do consular processing for that reason.

3. Investment as an Individual vs. Investment by a Foreign Business

There is a distinction between investment as an individual versus investment by a foreign business for E2.

You will be considered the E2 principal investor if you are investing in a U.S business as an individual. If your foreign business is making an investment into a U.S. business, it will be considered the E2 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. 

4. How Hard is it to Get an E2 Visa?

With all this in mind, you should now know the basics of what is required to be eligible for E2. But, an important part of a successful E2 petition is having all required evidence to submit.

If purchasing an existing business, you should submit all necessary purchase documents. If establishing a new business, you should submit all necessary documents associated with the formation of the company, such as incorporation documents, and other documents. It is also highly important to show evidence that a substantial investment was made and to show that you own a controlling interest (50% or more) in the business.

Furthermore, you must submit appropriate documentation showing that the business is real and active, bona fide, and non-marginal (such as pictures of the business, purchase orders, printouts of your website, etc.)

Gathering all these documents may be overwhelming, but working with an experienced immigration attorney who can guide you through the process will likely make things easier.

Additionally, it is important to note that the E2 visa process can be relatively straightforward, compared to other immigration application types. 

To have the best chances of approval, you should make sure of the following:

1. That you are eligible for an E2 visa
2. That you satisfy all of the requirements to get an E2 visa
3. That you properly demonstrate to USCIS or the appropriate consulate or embassy, that you satisfy all of the requirements to get an E2 visa (in your E2 visa application)

A qualified immigration lawyer can help you with the above 3 prongs.

5. Applying for the E2 Visa from within the U.S. vs. Applying at a Consulate

If you are already in the United States on a valid status, you may consider doing a change of status to E2. Keep in mind that this will only enable you to stay for up to a 2-year period unless you choose to extend your status it becomes necessary to do so. If you plan to travel, a change of status might not be recommended as you will likely not be able to re-enter the United States on E2 status. Instead, you will have to opt for consular processing.

While consular standards across the world vary, they all consider the basic requirements of the E2 visa. An experienced immigration attorney can work with you throughout the consular filing process. Securing a consular interview as a result of the COVID-19 pandemic may take time depending on each consulate’s backlog, but these delays are expected to improve in the future.

6. Conclusion

After having read this guide, you should have a better understanding of the E2 visa requirements and just how hard it is to apply for an E2 visa.

If you have any further questions about applying for the E2, our team would be happy to answer them. You may email me directly at Michael@AshooriLaw.com or you may request a free consultation by clicking this link.