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

The E2 Visa is a great option for investors and entrepreneurs. With an E2 visa, you can live in the United States, start a US business, and work for your business. 

 

In this guide I will discuss what you need to know the E2 visa.

 

If you have any questions about the E2 visa, feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and would be happy to answer your questions.

 

Overview:

 

1. What is the E2 Visa?

2. What are the Benefits of an E2 Visa?

3. What are the E2 Visa Requirements?

4. What is the Process of Getting an E2 Visa?

5. What are the Differences Between Getting an E2 Visa and Doing a Change of Status to E2 Status?

6. How Long Does it Take to Get an E2 Visa?

7. How Long Can I be in the US on an E2 Visa?

8. If I Get an E2 Visa, Do My Family Members Get Immigration Benefits?

9. Can I Get an E2 Visa as an Employee of an E2 Company?

10. How Can I Go From an E2 Visa to a Green Card?

11. Conclusion

 

1. What is the E2 Visa?

 

The E2 visa is a non-immigrant visa for investors, entrepreneurs, and people looking to run a business in the United States. With an E2 visa, you can start a US business or invest in a US business and work for that business.

 

To get an E2 visa, you must invest a substantial amount of capital into a US business and you must direct and develop that business. You can either start a new business or invest in an existing business to qualify for an E2 visa.

 

The E2 visa is only available to people from certain countries that have an E2 treaty with the United States (we will go over the countries that qualify for an E2 visa down below).

 

There is no limit to the number of times the E2 visa can be renewed. So as long as the E2 business continues to operate and meet the E2 visa requirements, and E2 visa holder can continue to renew their visa and live and work in the United States.

 

Summary:

 

• The E2 visa is a non-immigrant visa for investors.

 

• You qualify for an E2 visa by making a substantial investment in a US company.

 

• The E2 visa can be renewed over and over as long as the business continues to operate and meet the E2 requirements.

2. What are the Benefits of an E2 Visa?

 

• With an E2 visa, you can start a business in the United States and work for that business.

 

• By getting an E2 visa, your spouse and unmarried children under 21 years old can also qualify for E2 visas.

 

• Your spouse can apply for work authorization, to work in the United States.

 

• Your children can go to school in the United States.

 

• There is no set minimum investment amount to qualify for an E2 visa. Investments as low as $50,000 or even lower have qualified for E2.

 

• There is no limit to the number of times you can extend your E2 visa. Some E2 visa holders stay in the United States for 15 years or longer.

 

• Unlike other non-immigrant visas, you do not need to maintain a foreign residence to get an E2 visa.

 

3. What are the E2 Visa Requirements?

 

There are 8 main requirements to qualify for an E2 visa:

 

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

 

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

 

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

 

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

 

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

 

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

 

• The source of your investment funds must be lawful.

 

• 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 E2 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 E2 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 E2 visa. You will have to apply for the E2 visa based on your 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 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.

 

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's a complete list of all the countries that have an E2 treaty with the United States:

 

• 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.

 

Here are some major countries that do not have an E2 Treaty with the US:

 

• Brazil
• China
• India
• Russia

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

 

To get an E2 visa, you must have the intent to depart the United States once your E2 status ends.

 

• For most 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, a career, etc.

 

• This is not required for an E2 visa.

 

• For the E2 visa, you can satisfy the "intent to depart" requirement by submitting a signed statement that you intend to depart the United States once your E2 status ends.

 

• If you need any help with this, feel free to email me directly at Michael@AshooriLaw.com 

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

 

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

 

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

 

• The Foreign Affairs Manual specifically states: “No set dollar figural 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 the total value of your business is $100,000 or less, your actual investment should be 100% of the total value of the business, to be considered substantial.

 

• On the opposite end of the spectrum, if the total value of your business is very high (for example $10,000,000), an investment of $5,000,000 would very likely be considered substantial even though proportionately it is only 50% of the total value of the business.

 

• If you have any questions on your particular business, and whether your investment will be considered substantial, please email me directly at Michael@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 invested in the business and put at risk.

 

• 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 E2 visa must be an active, for-profit, business. 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.

 

• Passive investments will not qualify. This means that an investment in a piece of residential real estate, or an investment in the stock market will not work.

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

 

 

To qualify for an E2 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 an 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 current 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, 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 E2 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 use to invest in your E2 business must have been obtained lawfully.

 

• Examples of lawful sources of funds include earnings from lawful employment, income from the sale of a property, gifts, an inheritance, etc.

 

• 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 E2 visa, 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 must actually be spent on the business and cannot 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.

 

• To determine whether your investment is truly at risk, you can ask yourself the following question: If the E2 business fails, how much money would be lost?

 

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 E2 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, 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 E2 visa or E2 change of status.