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The E-2 visa is a non-immigrant, temporary visa for qualifying investors to direct and develop a U.S. company. The E-2 can be used to start a business or buy an existing business in the U.S., but the individual and majority ownership of the company must have the nationality of the country with whom the U.S. has a relevant treaty. Key employees of the qualifying company, who are also nationals of the treaty country, can also be eligible for E-2 status.
Caroline Ostrom, Minneapolis business immigration attorney, assists individuals and companies worldwide who are seeking U.S. E-2 investor visas. We encourage you to contact us if you need legal advice regarding E-2 eligibility or the application process.
To qualify for an E-2 visa, both the individual seeking the visa and the employing U.S. entity must be nationals of a country on the relevant treaty list.
The nationality of a company is determined by the nationality of the owners. To qualify for the E-2, at least 50% of the owners of must be nationals of the treaty country. Treaty country nationals who have permanent resident (green card) status in the U.S. are not counted as nationals of a treaty country for E-2 purposes.
To qualify for the E-2, the investor must prove that he or she has invested, or is actively in the process of investing, substantial funds in a real, operating commercial enterprise. The regulations do not specify a dollar amount to be considered “substantial.” Instead, the determination is based on the particular nature of the business, and whether the investment is large in proportion to the amount of capital needed to establish the business and make it operational.
The E-2 investor must establish that funds have already been invested, or, that he or she is actively in the process of substantially investing in the company. Having uncommitted funds in a bank account with the intent to invest is insufficient. Funds can be held in escrow, to be transferred only if the visa is issued.
Borrowed funds can qualify as capital only if they are “at risk.” Assets are considered to be at risk if they can be lost if the business fails. Borrowed funds secured by the assets of the company do not count toward the E-2 investment. A loan secured by personal assets may be considered “at risk” and counted.
The E-2 investor must demonstrate that the U.S. company is not a “marginal” enterprise. A marginal enterprise is one that only generates enough income to provide a living for the investor and his or her family. If a new enterprise does not have the current capacity to meet this test, the investor may still qualify for E-2 status, provided that he or she can demonstrate how the business will create U.S. jobs or generate substantial profits within five years.
The E-2 visa is not for the passive investor. The E-2 investor must be in the U.S. to direct and develop the operation of the company. In addition to controlling the U.S. company through 50% or greater stock ownership, the E-2 investor should generally also have relevant education or experience in the proposed business activity or a track record of entrepreneurial success. If the investor does not have 50% ownership of the company, corporate documents may give him or her the requisite authority to otherwise direct and control the investment.
In addition to the principal investors, key employees of the company may qualify for an E-2 visa. The employees must have the same nationality as the employer. The position to be filled by an E-2 employee must be in an executive or supervisory capacity that involves control of the organization’s overall operation, or a major component of it, or the position must require highly specialized skills essential to the operation of the business.
The E-2 visa entry may be issued by a U.S. consulate abroad for a period of up to five years, depending on the country of nationality. This visa period is the time during which the E-2 visa holder can use the visa to enter the U.S. Each time a treaty investor with an E-2 visa is admitted to the U.S., he or she is granted a 2 year period in which to remain in the U.S. This is the period of admission. There is no limit on E-2 visa renewals, provided the U.S. company continues to exist, the business does not become marginal, and the E-2 entrant maintains valid status in the U.S. Since the E-2 is a temporary nonimmigrant visa however, the individual must have a temporary intent to remain in the United States, even if the E-2 has been renewed multiple times.
The spouse and children under the age of 21 of the investor are eligible for E-2 dependent visas. The E-2 spouse is eligible to apply for work authorization in the U.S. The spouse and children of the E-2 investor do not need to have the same nationality as the investor, or be nationals of countries on the treaty list. When the E-2 children turn 21, they no longer qualify for E-2 status, and must find a different relevant category, such as an F-1 student visa, to remain in the U.S.
Generally, an E-2 treaty investor applies for the visa directly at a U.S. consulate outside of the United States. An investor seeking E-2 status who is already in the United States in non-immigrant status may be eligible to file an application to change to E-2 status with USCIS, but will need an E-2 entry visa in order to re-enter the U.S. in E-2 status.
A successful E-2 visa application requires careful documentation related to the investment and future prospects of the company, as well as the roles of the E-2 visa applicants. This documentation must be in place before applying for the visa. Ostrom Law Office provides guidance to the E-2 investor and referrals as appropriate to other professionals, such as corporate lawyers, business planners, and tax specialists, to establish the company and the investment. In addition to knowing the relevant regulations and government manuals, we also find out various U.S. consular posts’ interpretations of the E-2 guidance, which can vary from post to post. There are many parts to the E-2 application, which we carefully assess and organize, to present a strong case for approval of the E-2.
Based in Minneapolis, our immigration team works with employees and companies in the Twin Cities and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your immigration matter.