Opportunity to open and grow a small business in the United States: E-2 Investor Visas

By Elizabeth Pemberton (Paralegal) and Petula McShiras (Senior Associate Attorney)

A foreign national who is a citizen of a country that has a specific treaty with the United States can enter and/or remain the United States to invest in a business or to engage in international trade under either an E-1 (Treaty Traders) or an E-2 (Treaty Investors) visa.

This article will focus on the E-2 treaty investor visa.

General Qualifications: to qualify for E-2 classification, the treaty investor must:

1.  Be a national of a country with which the United States maintains a treaty of commerce and navigation.

2.  Have invested, or be actively in the process of investing in, a bona fide enterprise, i.e. real and operating commercial enterprise.

3.  The investment is a substantial amount of capital in a bona fide United States enterprise.

4.  The investment is more than marginal (solely for earning a living) and at risk.

5.  The nationals of the treaty country must own at least 50% of the enterprise.

6.  The individual is seeking to enter the United States solely to develop and direct the investment enterprise and, in a position to do so, through a showing of at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

a. OR if an employee, will occupy an executive/supervisory position or possess skills essential to the enterprise.

7.  The individual intends to depart the United States when the E-2 status terminates.

a. NOTE – E-2 visas/status are eligible for unlimited extensions of status.

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. It cannot just be money in a bank account. 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:

a.  Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one.

b.  Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise.

c.  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.

A bona fide enterprise refers to a real, active, and operating undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

E-2 Visa vs. E-2 Status/Period of Stay (I-94 Record)

When entering the United States or filing for a change or extension of status, qualified E-2 investors and E-2 employees will be allowed a maximum period of stay of two (2) years, as reflected on the I-94 Entry Record. There is no 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 E-2 status expires or ends.

When applying for the E-2 visa abroad, the length or validity period of the visa is dependent on the foreign country. Some countries allow for multiple entry visas that are valid for five (5) years (60 months), while other countries will only allow one entry with a visa validity of one (1) year, or even less.

An E-2 nonimmigrant who travels abroad must apply for an E-2 visa with the U.S. embassy in their home country and complete E-2 company registration with the embassy. The U.S. embassy is allowed to review the E-2 visa application de novo. Each country also has its own set of requirements for required documents, the size of the submission, and the E-2 visa process.

When entering, or re-entering the United States after travel abroad, an E-2 visa holder may generally be admitted to the USA for a 2-year period.

CHANGE / EXTENSION OF STATUS (Inside the US)

EMBASSY PROCESSING (Outside the US)

1. Lawful entry / maintain lawful nonimmigrant status 2. Submit E-2 petition (Form I-129) with USCIS (premium processing available) 3. If granted, stay in the USA in lawful E-2 status for up to 2 years, then, will either need to file a subsequent petition for extension of E-2 status or depart the USA 4. If traveling internationally, must either have or apply for new E-2 visa stamp at U.S. embassy abroad

1. Submit E-2 visa application to U.S. Embassy in home country per Embassy instructions  2. Attend in person interview at U.S. Embassy where application submitted 3. If granted, obtain E-2 visa stamp in Passport allowing for entry to the U.S. (not regardless of duration of visa, admission in E-2 status is for maximum duration of 2 years after any given entry) 4. After 2 years, either file application for extension of E-2 status or depart USA and re-entry using valid E-2 visa. May need to apply for new E-2 visa with new E-2 application.

 

If interested in an E-2 Investor status / visa, please consult with the team at Kolko & Casey, P.C. We would be glad to discuss the requirements for an E-2 investment in more detail as well as strategize the best options for you in applying for an E-2 visa or status.

5251 South Quebec Street, Suite 200
Greenwood Village, Colorado 80111
Telephone: 303-371-1822
www.kolkocasey.com