The E-2 visa permits an owner and/or certain employees of a qualifying entity to enter the U.S. to develop and direct the operations of a commercial enterprise in which the qualifying investor or entity has invested or is in the process of investing a substantial amount of capital. Similar to the E-1 visa the business must be a foreign-owned corporation. The treaty investor must establish that he/she has acquired a controlling interest (at least 50%) in the U.S. entity and must be working in an executive capacity or performing essential services. The E-2 visa is generally granted as a 5-year multiple entry visa but, in the discretion of the U.S. Consulate, can be granted for shorter periods from 1-3 years for newly established investment enterprises and depending upon treaty agreements between the applicant’s home country and the US
Once again there are detailed requirements:
● The investor, either a person, partnership, or corporate entity, must be a citizen of a treaty country. This includes 80 different countries, worldwide, so be sure to check with your local U.S. Consulate or Embassy to find if your country qualifies.
● If a business, must be at least 50 percent owned by persons with the treaty country’s nationality.
● The investment must be substantial, with investment funds or assets committed and irrevocable. The investment must be sufficient to ensure the successful operation of the enterprise. Though not expressly noted in the requirements, Consulates and Embassies generally do not approve applications investing less than $100,000. In some circumstances, though, these applications may qualify as low-cost start-up investments.
● The investment must be in a real operating enterprise, an active commercial, or an entrepreneurial undertaking. A paper organization, speculative, or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
● It must generate significantly more income than just to provide a living to you and your family, or it must have a significant economic impact in the United States.
● You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
● You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
The E-2 visa presents the same challenge as the E-1 visa in that it has dual jurisdiction. This means that you can process a case at a U.S. Consulate or you can process a case with USCIS – however you cannot take a USCIS approval to the Consulate for a visa as you could with almost any other NIV case. Instead, if you have approval from USCIS, you can simply use it to live and work in the U.S. However, you cannot use it to travel. This will require consultation with an attorney to properly strategize and plan the filing since you will likely need to file both.
The most common question we get about E visas is not about how to qualify, but about where to file and how to plan for the two different types of filings. Importantly, the Consulate bases their decision on the standards in the Foreign Affairs Manual, while USCIS bases their decision on the standards in the INA and federal regulations.