There are many ways to live and work in the U.S. However, the E-2 represents 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.
E-2 treaty investor visas are nonimmigrant visas reserved for foreign entrepreneurs of countries that have a Treaty of Trade and Commerce with the U.S. Essentially what this visa does is enable the foreign investor to develop or carry out the investment/ trade activities of the business.
There is often ambiguity regarding the definition of investment activities. For the purpose of the E-2 visa, the investment must be substantial and made with the appropriate funds (either personal funds or a loan secured with property).
A substantial amount of capital relates to the total cost of purchasing or establishing the business. It must be sufficient enough to ensure successful operations and be adequate to develop the business.
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.
An investment is the treaty investor’s 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.
A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- 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, proportionately, the investment must be to be considered substantial.
Here is an example:
Peter is interested in investing in a small flower shop worth $200,000 while Sandra wants to invest in a mid-sized restaurant chain worth $8 million. To qualify for an E-2 visa, Peter will likely have to invest an amount equal to the value of the flower shop. On the other hand, Sandra will likely be able to qualify by investing 10-15% of the worth of the restaurant chain.
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.
The investment enterprise may not be marginal. 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.
Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).
E-2 processing time typically takes between 2-4 weeks from the time of filing. Some US Embassies may have a longer processing time. Know that additional time may be required depending on the specifics of your case. An E-2 lawyer will be able to more accurately explain your processing time.
E-2 Treaty Investor Visa Countries
The E-2 investor trader visa is only to people from the countries that the U.S. has a treaty with. The Department of State maintains a complete list of those countries. If you are a U.K national, you must also be a resident of the British Isles in order to be eligible.
It is important to note that you do not need to be currently living in the treaty country in order to qualify for an E-2. You simply need to be a national from that country. Additionally, any workers or family members that you bring through your E-2 status do not need to be from your treaty country.
Advantages of E-2 Treaty Investor Visa
There are a number of privileges that you can enjoy on 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 based with extensions available to you
- 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 in order to accompany the principal visa holder. The spouse of an E visa holder may apply to DHS for employment authorization. Dependent children of an E visa holder are not authorized to work in the U.S.
- Dependents are able to attend school in the U.S., as well as colleges and universities without needing an F1 visa.
- Spouse and dependents can also apply for EADs (employment authorization documents) to be permitted to work in the U.S.
Disadvantages of E-2 Treaty Investor Visa
Each visa has its pros and cons. Depending on your situation, the E-2 visa may not be right for your case. 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 so depending on the time length you require, the application process may be complex
Period of Stay
Qualified treaty investors and employees will be allowed a maximum initial 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 may generally be granted an automatic two-year period of readmission when returning to the United States. Please note that while your E-2 visa may be issued for 3 months or up to 5 years (depending upon the reciprocity laws which 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.
Filing Your E-2 Visa Application
To learn what other advantages or disadvantages can apply, it’s best to consult with an immigration attorney. Visa applications need to be submitted to the USCIS service center, if you are currently in the U.S. Otherwise, submit your application to the consular office in your home country.
If you are in the U.S. under a different nonimmigrant status, then your status will change to E-2 when your I-129 is approved. If you are outside of the country, then you will likely need to complete a DS-160 online nonimmigrant visa application and bring it to your consular interview. 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 not sure of the answer to a question.
Employees and Family
One of the advantages we mentioned included being able to bring your family over as well as employees to help you advance your enterprise. An important thing to note is that the nationalities of your family or employees do not need to be from a treaty country, that is only for the principal beneficiary. The spouses of E-2 investors and workers can also file an I-765 form for work authorization.
E-2 Visa Fees
A noted benefit of the E-2 visa is that, aside from the actual investment amount, the cost of filing is relatively inexpensive when compared to other common nonimmigrant visas such as the H-1B or the L-1. Here are the E-2 visa fees that you need to be concerned with:
- There is a filing fee of $460 for all I-129 petitions.
- If you are overseas when filing the petition, you will need to file a DS-160 application, which incurs a $205 filing fee.
- In many cases, you will be asked to make a biometrics appointment, mostly to take your fingerprints. In this case, you will be charged an $85 fee.
- Remember that your family can accompany you as well as employees, but a separate I-129 must be filed for each one.
- Additionally, you can opt to pay an extra fee of $1,440 to have your petition’s processing time expedited to just 15 calendar days. Just remember that this does not improve your chances of being approved, only that it will take less time to process your petition.
E-2 Visa Denial
One of the major fears that come 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.
First, we need to remember that 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 completed, 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, then 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.
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.
There are two legal motions that can be taken after en E-2 visa denial: a motion to reopen and a motion to reconsider. In a motion to reopen, you would request to have your closed case reopened due to the fact that new documentation or evidence has come to light that may change the outcome of the decision. 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.
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.
Going from an E-2 Visa to a Green Card
Going from a nonimmigrant visa (temporary) to an immigrant one (green card) is often a long and complicated process, especially with certain kinds of green cards. For the most part, those who were in the U.S. under E-2 status go for an employment- or investment-based green card, which may or may not be applicable to you depending on your situation. Here are some of the common choices:
- The EB-5 for foreign investors.
- The EB-1 for extraordinary aliens, outstanding researchers, and professors, or multinational executives and managers.
- The EB-2 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, be sure to take a look at our guide on the PERM Labor Certification to better understand this process.
The EB-1 can be attainable, especially if you can demonstrate extraordinary achievement. Through this qualification, you can apply without the need for a sponsoring employer.
However, one of the most common green cards that E-2 visa holders petition for is the EB-5 due to having similar requirements. To get an EB-5, you must invest at least $1 million in a U.S. enterprise or $500,000 in an enterprise located in a rural area or an area with high unemployment.
To get the EB-5 process started once you’ve invested the money, you will need to send an I-526 petition to the USCIS along with the necessary fees (if you are going for the EB-1 or EB-2, you will need to send the I-140 petition). Once they receive your petition, that date will be 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 newsletter. 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, a visa number will become available, and you can move onto the next step.
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 months and can be relatively costly depending on your age.
On the other hand, you can travel to the U.S. Consulate or Embassy in your home country and participate in a one-on-one interview with an immigration officer if you choose to use consular processing. This usually costs less (ignoring any travel fees) and can take less time, so you and your attorney can decide which route is best for you. In either case, you will be issued your green card after your status is approved.
How an E-2 Attorney Can Help
As an investor, you likely know that failing to protecting 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.
Looking for a qualified E-2 visa attorney? The lawyers at Immi-USA can help you file an E-2 visa based on the USCIS and 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. If we determine that you do not qualify for an E-2 visa, we will explore what other non-immigrant status options may apply.
To get in touch with our immigration attorneys, you can fill out this contact form and schedule your consultation today.