The "E" in the E-2 Visa does not stand for "entrepreneur," but perhaps it should. The E-2 Investor Visa is designed to allow foreign entrepreneurs to enter the United States and work in a business in which they have invested a “substantial” amount. This amount is not specified under E-2 Investor Visa rules.
These entrepreneurs funnel cash into new and existing companies and work in these businesses under the E-2 Investor Visa. The Visa could cover a cash investment, such as a stock purchase, buying the company outright, or any substantial investment that creates a risk for the investor.
Facts About the E-2 Investor Visa
The E-2 Investor Visa is different from an investor-related green card. A green card stemming from an investment is permanent. It is also linked to a specific financial amount of $500,000 or more.
The E-2 Investor Visa was designed to help spur business growth and increase job opportunities for American workers. Sometimes called the “treaty investor visa,” it requires the foreign-born investor to own at least 50% of the company or be listed as an operations manager or executive.
Here are some of the key characteristics of the E-2 Investor Visa:
- You can only apply for it if you are from a country that has a current treaty with the United States. Currently, there are less than 100 treaty countries, including Canada, China, France, Germany, Mexico, and Poland.
- While the E-2 states a foreign-born investor must make a “substantial” investment in an American business, the amount is not quantified.
- If you're under an E-2, you must work exclusively for the company you have invested in.
- The initial E-2 Investor Visa is initially awarded for two years, but the extensions are unlimited. This could change, as this visa currently hinges on visa-related reciprocity agreements between the United States and the particular foreign country where the visa-holder resides.
- Family members (the spouse and minor unmarried children) of E-2 Visa holders can also come to the U.S. for an initial stay of two years. Their nationalities can be different from the E-2 visa holder. Children are allowed to attend school, and once they're here, the adult spouse can apply for a work permit. These visas can also be renewed.
- The E-2 Investor Visa can be permanently renewed, making this visa similar to a green card, in terms of the potential for length-of-stay.
So, how much cash qualifies a substantial investment. Generally, USCIS looks at the following:
- How does the investment compare to the cost of purchasing an established company or setting up a new business?
- Is the success of the company tied to the treaty investor’s commitment?
- Will the E-2 investor contribute to the daily operations of the company?
Further, the rules state that to receive an E-2 Investor Visa, the foreign-born investor must have proven skills in the specific industry they're investing in. They also must possess unique skills that impact the company and the industry. Finally, they have the ability to bring in a high salary, based on these skills.
How Can I Get an E-2 Investor Visa?
You can seek an E-2 Investor Visa if you meet the following criteria:
- As we mentioned, the first key to landing an E-2 Investor Visa is making sure your country has a treaty relationship with the United States.
- E-2 Immigrant Visa holders are required to work in a business he or she owns or has stock in.
- You must be the owner of this company, a high-level executive, or someone with specialized or essential skills related to the business.
- The applicant must have invested in the business in a substantial way. Because there is no dollar figure named, this may seem arbitrary. However, the rules state that "You must show a clear and legitimate path regarding the source of the capital you will be investing." You will also need to prove your investment funding did not come from a criminal enterprise. Finally, you will need to show that the amount you invested is at risk; if the business fails, you lose the cash.
- You will also need to prove that you are investing in a legitimate business engaged in the sale of products or services or other commercial activities. The E-2 Investor Visa will not be given to anyone not engaged in a “bona fide enterprise,” meaning you won’t receive an E-2 if you’re simply buying stock in a brand new business.
- The U.S. Citizen and Immigration Services (USCIS) want you to be at least 50% invested in operating the American company.
- You will also be required to leave the U.S. when your business is completed. Again, the E-2 Investor Visa is not like a green card.
One common question we hear is about the legal difference between a “bona fide” business and a “marginal enterprise.” These two distinctions are named on the USCIS website. According to the rules, a marginal enterprise is one that doesn’t have the capability to generate revenue long-term. A marginal enterprise could be passive or speculative, such as investing in real estate.
What Form Do I Need?
If you’re ready to apply for the E-2 Investor Visa, you’ll need Form I-129, Petition for a Nonimmigrant Worker. Here is some of the information you will need to have on hand to fill out the form:
- Federal Employer Identification Number and Individual IRS Tax Number
- Your new job title, place of employment, and type of business
- LCA or ETA Case Number
- Your pay and hours
- Current number of U.S. employees working for the business
- The company’s gross and net annual income, along with the year established
- The nationality of the other owners of the company (if any)
- Assets, net worth and net annual income for the other owners
If you need help filing the I-129 form to apply for the E-2 Investor Visa or have questions about the document, please don't hesitate to contact Katz Law Office, Ltd.