Is there a Visa to Operate Your Own Business in the US?

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Can you get a visa to operate your own business in the United States, like a restaurant, café, or other business?  The answer is ‘yes.’  There is a special visa called the E2 visa that allows somebody to operate their own business in the U.S.  The E2 visa requires you to invest a substantial amount of money in a business in the United States.  You can start a business from scratch, or you can purchase an existing business for the E2 visa.

How much do you need to invest in the business?  Well, immigration regulations do not specify a dollar amount, but we typically recommend at least $100,000.  That said, in the past, we have seen investments for less than $100,000 be approved.  

One thing to keep in mind is that not every country is eligible to take part in the E2 visa.  It is actually often called a visa for “treaty investors” because you must be from a country that has an E2 Treaty with the United States.   

Read on to learn more about all aspects of the E2 visa.  We are Ashoori Law, led by Michael Ashoori, a U.S. immigration lawyer based in Los Angeles, California.  At our law firm we work with clients from all over the world, and we regularly post articles and videos to make sure that you are up to date with the latest immigration news.  If, after reading this article, you have any questions, you may call, text, or WhatsApp message us at +1-818-741-1117. You may also request a free consultation by clicking this link.

The E2 Visa – the Visa for “Treaty Investors”

The E2 temporary (nonimmigrant) visa is available to those who (i) are from a country that has a treaty with the United States, and (ii) has invested, or is actively in the process of investing, a substantial amount of money in a commercial enterprise.  In addition, certain employees of a treaty investor or of a qualifying enterprise may also take advantage of the E2 visa, as well as certain immediate family members.

What are the Requirements to Obtain an E2 Visa as a Treaty Investor?

All of the following criteria must be met to obtain an E2 visa:

1. A treaty exists between the U.S. and the foreign country under which the E2 visa designation is sought;
2. Foreign nationals of a treaty country hold the majority of ownership and control in the relevant investment; 
3. The capital in the process of being invested or that has been invested is substantial;
4. The investment is more than a marginal one solely for earning a living;
5. The qualifying enterprise is a real, active, and operating commercial enterprise, i.e., a bona fide enterprise;
6. The applicant is a foreign national under whose treaty the E2 visa is sought;
7. The applicant is either the actual investor of the qualifying enterprise, or an employee of the investor and is coming to the U.S. to work in an executive or supervisory capacity, or who has special qualifications essential to the operation of the enterprise; and
8. The applicant intends to depart the U.S. upon the expiration or termination of E2 status.

Given the criteria above, it is important to define some key terms. 

• Investment. 

The term investment in this context means that the treaty investor is putting capital (funds and other assets) at risk in order to generate a profit.  The capital must be subject to partial or total loss if the investment fails. 

The investment must be in the possession and control of the treaty investor and must be the investor’s unsecured personal business capital or capital secured by personal assets.  Mortgage debt or a commercial loan secured by the qualifying enterprise’s assets will not be sufficient to be considered “investment” for an E2 candidate.  Also, the treaty investor must demonstrate that the funds have not been obtained from criminal activity. 

• Substantial amount of capital. 

The notion of a “substantial amount” means (i) substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; (ii) sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and (iii) of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. 

The lower the cost of the enterprise, the higher the investment must be for it to be considered “substantial.”  Accordingly, the cost of the business alone does not determine whether the capital is substantial.  Rather, it is a fact-sensitive inquiry based on the type of enterprise and amount of investment. 

• Marginal Investment.

The investment cannot be a marginal enterprise.  A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.  Some factors that are considered in determining marginality include whether the investment will expand job opportunities, generate other sources of income, and generate income substantially above what would be considered a living income.  

• Bona Fide Enterprise.

A bona fide enterprise means a real, active, and operating commercial or entrepreneurial undertaking that produces goods or services for a profit.  Passive investment would not be considered a bona fide enterprise.   

What are the Requirements for an Employee of a Treaty Investor?

Employees of a treaty investor are also eligible for E2 classification if the following criteria are met.  The employee must:

1. Have the same nationality as the principal treaty employer;
2. Meet the definition of “employee;” and
3. Be engaging in the duties of an executive, a supervisor, or have special qualifications, which ensures that the employee has ultimate control and responsibility for the employer’s overall operation, or a major component of it, or at least provides services essential to the operation of the employer.

How Do You Apply for an E2 Visa?

If you are already in the U.S. under a lawful nonimmigrant status and wish to change to an E2 status, then a Form I-129, Petition for Nonimmigrant Worker, must be filed with the United States Citizenship and Immigration Service (USCIS). 

If, however, you are outside the U.S., then you must obtain a visa through the U.S. Department of State at a U.S. Embassy or Consulate in your home country.  Upon obtaining the visa, you may apply to a Dept. of Homeland Security officer at the U.S. port of entry to enter as an E2 nonimmigrant. 

What is the Period of Stay for E2 Visas?

The maximum initial stay for E2 treaty investors and employees is two years.  Extensions are granted in increments of up to two years each.  There is no maximum limit to the number of extensions granted to an E2 visa holder, provided that the visa holder has the intention to depart the U.S. when the status expires or is terminated.  If an E2 travels abroad, he or she will generally be granted an automatic two-year period of readmission when returning to the U.S. 

Conclusion

In short, the E2 visa is a great opportunity for you, as a non-citizen, to obtain status in the U.S. based upon your desire to open their own business in the U.S.

My name is Michael Ashoori and I’m a U.S. immigration lawyer and the founder of Ashoori Law. As an immigration lawyer, I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.  If you have any questions, feel free to schedule a free consultation by clicking this link.