While there are many ways to live and work in the U.S, the E-2 is one of the few ways to build your own business as a foreign entrepreneur. The process of obtaining this visa is relatively uncomplicated compared to popular visas like the H-1B, but qualifying is a different story. Find out what you need to be eligible for the E-2 treaty investor visa.
Schedule a consultation with an experienced VisaNation attorney to see if you qualify for the E-2 Visa.
What is the E-2 Investor Visa?
The E-2 treaty investor visa is a nonimmigrant visa for foreign entrepreneurs of countries that have a Treaty of Trade and Commerce with the United States. Essentially, this visa enables foreign investors to develop or carry out the investment/ trade activities of their business.
E-2 Requirements
To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or some other corporate device.
1. Be A National of an E-2 Treaty Country
The E-2 investor trader visa is only for people from the countries with which the U.S. has a treaty. The Department of State maintains a complete list of those countries. United Kingdom nationals must prove they are also residents of the U.K. to be eligible.
- You do not need to be currently living in the treaty country to qualify for an E-2. You simply need to be a national of that country.
- Family members that you bring through your E-2 status do not need to be from your treaty country.
- Any “essential employees” you bring to the U.S. under an E-2 visa must hold the same nationality as the principal investor. For example, a French E-2 visa holder can only bring French employees, not German or Canadian ones.
2. Make a Substantial Investment
An investment is the placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.
- The capital must be subject to partial or total loss if the investment fails.
- The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information.
There is often confusion regarding what is a “substantial” investment. The key takeaways are:
- Your investment must be a significant percentage of the total cost needed to either buy an existing business or start a new one from scratch. A small down payment will not suffice.
- The amount should be large enough to prove you have a real financial stake in the business’s success. In other words, you are not likely to walk away if things get tough.
- The investment needs to be sufficient to actually develop and run the company. It has to be a realistic amount of capital to get the business off the ground and operate it successfully.
The Proportionality Rule
The lower the cost of investing in the business, the higher the percentage you need to invest.
- For example, for a lower-cost business (e.g., $100,000), you might need to invest a very high percentage, like 75% or more ($75,000+).
- For a very expensive business (e.g., $2 million), a smaller percentage, like 30% ($600,000), might be considered substantial because it’s still a huge amount of money that shows a serious commitment.
3. Have Control of the Enterprise
You must be coming to the U.S. solely to develop and direct the business. This is typically proven by showing you own at least 50% of the enterprise or have operational control through a senior managerial position.
4. Be a “Bona Fide” Business
A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
Take a look at our Golden Visa Guide.
5. Not a Marginal Enterprise
To qualify for an E-2 Visa, the business cannot be marginal. A marginal enterprise does not have the present or future capacity to generate more than enough income to provide a minimal living for you and your family.
To avoid being considered marginal, a business must also make a significant economic contribution to the U.S., which is most effectively demonstrated by hiring U.S. workers.
According to 8 CFR 214.2(e)(15), a new enterprise can avoid a “marginal” classification even if it lacks the current capacity to generate such income, as long as it has a clear route to profitability within five years from the date that the treaty investor’s E-2 classification begins.
E-2 Visa Fees
The E-2 visa fees that you need to be familiar with:
- Filing from Abroad: If you are abroad when filing the petition, you will need to file a DS-160 application, which incurs a $315 filing fee.
- Your family can accompany you as well as employees; a separate DS-160 must be filed for each one.
- Filing from the U.S.: There is a filing fee of $1,015 for all I-129 petitions for those within the U.S. (If you are filing as a Small Employer or Nonprofit, the fee is $510)
- Additionally, you can opt to pay an extra fee of $2,805 to have your petition’s processing time expedited to 15 business days.
E-2 Visa Processing Time
Outside the United States
For those applying outside the United States, you apply for the E-2 visa at an embassy or consulate where you currently reside. The timeline can range from a few weeks in some locations to a few months in others due to backlogs.
Inside the United States
For those in the United States, the process involves filing the I-129. This generally takes around three to four months to process, but this timeline can also vary depending on backlogs at the USCIS service center.
To speed up the processing time to 15 business days, you can opt for premium processing by filing Form I-907, Request for Premium Processing Service.
Benefits of The E-2 Treaty Investor Visa
There are several benefits that you can enjoy on an E-2 Treaty Investor Visa, which include:
- Ability to travel freely in/out of the United States
- Work legally in the U.S. with the company
- Remain in the country on a prolonged basis with extensions available
- Have workers accompany you under your E-2 status
- Have dependents or relatives accompany you while working in the U.S.
- Spouses and children (unmarried under 21 years of age) may receive derivative E visas to accompany the principal visa holder.
- The spouse of an E visa holder has automatic employment authorization.
- Dependent children of an E visa holder are not authorized to work in the U.S., but are able to attend school in the U.S., as well as colleges and universities, without needing an F1 visa.
Disadvantages of The E-2 Treaty Investor Visa
Each visa has its pros and cons. Depending on your situation, the E-2 visa may not be the right fit. Here are some common reasons why the E-2 visa may not be appropriate or desirable:
- Limited to nationals of countries with investment treaties (see list above)
- Must work for the specific business that the E-2 visa is tied to
- Approved in increments of two years.
- Your capital must be “at risk” and subject to “partial or total loss if the investment fails.” This means you can’t just have money in a bank account. You must spend a significant portion of the funds on business expenses, like signing a lease, paying for marketing, or placing the funds in an escrow account that you cannot get back if the visa is denied. Essentially, you must risk a substantial amount of your capital on a business venture.
E-2 Period of Stay
While the visa stamp in the passport may be valid for up to five years, qualified treaty investors and employees will be allowed a maximum stay of two years. Requests for extension of stay may be granted in increments of up to two years each.
There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
An E-2 nonimmigrant who travels abroad is generally granted an automatic two-year period of readmission when returning to the United States.
Important: While your E-2 visa may be issued for 3 months or up to 5 years (depending upon the reciprocity laws that exist with your country of nationality), your period of authorized stay in the United States is determined by your I-94, which is issued at the time you enter the US with an E-2 visa.
How To File Your E-2 Visa Application
Inside the U.S.
Visa applications should be submitted to USCIS if you are currently in the U.S. under a different nonimmigrant status. The correct form is the Form I-129.
Outside the U.S.
For those living outside the U.S., you must file your DS-160 online nonimmigrant visa application with the Department of State and then undergo an interview in the country where you reside.
At the E-2 interview, an officer will review your case and your supporting documents to see if your case is legitimate. The most important thing to do is to be honest, even if you are unsure of the answer to a question.
Bringing Employees and Family on the E-2 Visa
One of the advantages is the ability to bring your family, as well as eligible employees. Importantly, your family (spouse and children) does not need to be from a treaty country.
Importantly, workers must share the same nationality as the primary E-2 beneficiary.
Going from an E-2 Visa to a Green Card
Going from an E-2 Visa to a green card is a delicate process, particularly due to the nonimmigrant intent requirement of the E-2 Visa. However, with careful navigation of the law, it is possible.
It’s important to understand that by switching to a green card, you waive the rights that would otherwise be granted to you under the treaty between your country and the United States.
You waive these rights through the Form I-508, Waiver of Certain Rights, Privileges, Exemptions, and Immunities.
Those in the U.S. under E-2 status typically go after an employment or investment-based green card. Here are some of the common choices:
The EB-5 Green Card for Foreign Investors.
One of the most common green cards for E-2 visa holders is the EB-5, due to having similar requirements. To get an EB-5, you must invest at least $1,050,000 in a U.S. enterprise or $800,000 (including infrastructure projects) in a Targeted Employment Area.
To get the EB-5 process started, once you’ve invested money in an enterprise, you must file an I-526 petition to the USCIS along with the necessary fees.
Once USCIS receives your petition, that date is considered your priority date. You will need to keep that date handy and check it against the final action dates provided in the Department of State’s monthly visa bulletin. Once your priority date matches or passes the final action date given in your green card category and your country of origin, your priority date will be considered current, and a visa number will become available.
Once your priority date is current, you will have two paths to choose from: adjustment of status and consular processing. Because you are already in the U.S. under a nonimmigrant visa status (i.e. your E-2 visa), you can simply file an I-485 application to have your status adjusted from nonimmigrant to immigrant. Although this is the easier route, this process takes an average of six to 12 months and can be relatively costly depending on your age.
The EB-1 Green Card
The EB-1 is perfect for extraordinary aliens, outstanding researchers and professors, or multinational executives and managers. Through the EB-1, you can apply without the need for a sponsoring employer. The process involves filing an I-140 petition with USCIS.
The EB-2 Green Card
The EB-2 is for those with an advanced degree or exceptional ability in their field. While it is not common for E-2 visa holders to pursue an EB-2 green card, it does happen. In this case, ensure you are familiar with our guide on the PERM Labor Certification and National Interest Waiver.
The process similarly involves filing an I-140 petition with USCIS.
What Happens After E-2 Visa Denial
One of the major fears that comes along with any visa is the idea that your visa might be denied or rejected. Let’s quickly go over the reasons this may happen for your E-2, how you can avoid it, and what to do if you have received an unfavorable decision.
Denial Vs Rejection
First, there is a difference between a rejection and a denial. When the USCIS receives a petition, it goes through two phases. In the first phase, an evaluating officer will perform a cursory check to ensure that the required information is complete, the necessary documentation is present, and the fees are correct. If your petition fails this check, then it is likely to be rejected.
If your petition passes this first phase, then it will be evaluated more closely by the officer. He or she will use the supporting documentation to determine whether or not your case merits an E-2 visa. If not, then your petition may be denied. You may also receive a request for evidence (RFE) if some more supporting documentation might help your case.
If you receive a rejection, you should work with your immigration attorney to determine exactly what the error or omission was that caused the rejection and fix it before refiling. However, you will be responsible for a new filing fee and petition.
If your petition is denied, then you likely have a more serious problem on your hands, as your case was denied based on your merit. This could be because your investment was not substantial, or you were not judged to be in a position to advance the enterprise. Your immigration attorney can help you better understand the reasoning behind it.
Options after Denial
Fortunately, there may be recourse for you if your E-2 petition is denied. Depending on your situation, you might be able to either file a legal motion or appeal the decision, both of which should only be done with the help of a qualified attorney.
Two legal motions can be taken after an E-2 visa denial: a motion to reopen and a motion to reconsider.
Motion to Reopen
In a motion to reopen, you would request to have your closed case reopened because new documentation or evidence has come to light that may change the outcome of the decision.
Motion to Reconsider
On the other hand, if you think that the evaluating officer’s decision was incorrect and you (or, more likely, your attorney) are prepared to argue this from a legal standpoint, then you may want to file a motion to reconsider.
Administrative Appeal
Lastly, you may be able to appeal to a third party for the decision. The Administrative Appeals Office handles these cases and can uphold or reverse the decision of the evaluating officer. Speak with your attorney to see how you can go about doing this.
How a VisaNation Law Group Can Help
As an investor, you likely know that failing to protect your investment can result in devastating losses in both time and money. Hiring an immigration attorney with extensive experience in E-2 visas is essential to making sure that no simple mistakes keep you from building your dream in the U.S.
The lawyers at VisaNation Law Group can help you file an E-2 visa based on the USCIS or U.S. Department of State guidelines. We have helped countless other investors get their start here in this country. During your consultation, we’ll explain which course of action will suit your case best or help explore what other non-immigrant status options may apply.
Get in touch with a VisaNation Law Group immigration attorney