Want to Start A Business in the U.S. and Live Here? The E-2 Treaty Investor Visa May Be for You

For those who have an entrepreneurial spirit, or who have ever thought about opening a business in the U.S., the E-2 investor visa may be a good fit.  This visa allows for a foreign person to open a U.S. business and stay and live in the U.S. legally for an indefinite amount of time. As long as the business continues to run, the investor can continue to renew his/her E-2 visa and remain in the U.S. However, the investor must have an intent to return to her home country when the E status ends.

The E-2 visa allows a person from a foreign country to come to the U.S. and engage in entrepreneur activities due to a treaty between their home country and the U.S. The treaties were originally intended to facilitate friendship and commerce between the U.S. and the treaty country. There must be a treaty in place between the U.S. and the foreign worker’s country to qualify for an E visa. Specifically, the E-2 Investor visa allows a foreign worker of a treaty country to make investments and who will be controlling those investments within a U.S. company. It also allows a company owned by nationals of the treaty country to invest in a U.S. company.

Qualifications of a Treaty Investor

• Be a national of a country that has a treaty of commerce and navigation with the U.S.
• Seek to enter the U.S. to develop and manage the business/investment by establishing at least a 50 percent or more ownership or control through a managerial position or related position.
• The investor has invested or is actively in the process of investing (i.e. has signed a lease, money for the business has been placed in an escrow account) a substantial amount of capital in a bona fide enterprise in the U.S. A bona fide enterprise is a real, active, and operating commercial or entrepreneurial undertaking that produces services or goods for profit.
• The investor is in a position to develop and direct the business. The investor must be in a managerial type position and cannot simply be an employee of the business.

Treaty Countries

There must be a treaty between the U.S. and one of the following countries to qualify for the E-2 visa: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Iceland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia. You can also find the list here.

Substantial Investment

The investor must invest a substantial amount of capital to create a U.S. business. An investment is the placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating profit. There is not a set minimum amount for an investment, but it must be substantial.

A substantial amount of capital can be:

• Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one.
• Sufficient enough to confirm the treaty investor’s financial commitment to the successful operation of the business.
• A large amount to support the likelihood that the treaty investor will successfully develop and direct the business/investment. The smaller the business or cost of the business, the higher the percentage of the investment must be to be considered substantial.

The amount of the investment depends on the amount required to get the business fully operational.  The smaller the investment for the business, the higher the investment amount the investor must be able to invest with his/her own money. For example, if an investor is planning to open a consulting firm that would need a $50,000 investment to get it fully operational, the investor should be able to come up with at least 90% of that investment amount, which would be $45,000.  If the business would cost $100,000, then the investor should be able to come up with at least $75,000 of the funding.  If the total investment is $10,000,000, then a $3,000,000 investment from the investor would likely be enough.  As you can see, the lower the initial investment amount, the higher the investment amount the investor has to have to qualify for the E-2.

The investment cannot be just a business idea.  For this to work, the investor must show that the investment funds are at risk and subject to partial or total loss if the investment fails. The investment cannot be marginal, meaning that it is one that does not have a present or easily foreseeable future capacity to generate enough income to provide a living for the treaty investor and her/his family. If the enterprise is marginal there is a five-year grace period to generate the required income. Having a solid written business plan is a necessity for this process as well. The business plan should include the company’s beginning operations and plans for future operations, as well as outline the plans for growth and include the employment of U.S. workers.

Source of Funds

The treaty investor must show the funds have not been obtained from criminal activity. Since the government will not allow money from criminal activity to be used for E-2 investment purposes, the investor must be able to provide detailed documentation showing where the funds he/she is investing came from. For example, I have had clients who have sold their houses abroad and used those funds to invest in the business.  A transaction like that should be easily traceable.  The investor must also prove that he/she owns the funds invested.

Workers

It’s also possible for the E-2 investor’s company to hire foreign workers.  If a foreign worker is from the same country as the “E” employer, she/he may come to the U.S. to perform executive duties or essential duties for the employer. The foreign workers do not have to be an investor. These are roles that primarily provide the employee with the responsibility to make decisions regarding the overall operation or a substantial part of it. Knowledge of a foreign language does not meet the requirement alone. To meet this requirement, qualifications can include but are not limited to:

• The degree of proven expertise in the employee’s area of operations
• Whether or not others possess the employee’s specific skills
• The salary the special qualifications can command
• Whether the skills and qualifications are readily available in the U.S.

Procedures of Applying

If the investor or foreign worker is in his/her home country, they apply for the E-2 visa at a U.S. consulate abroad. If the investor or foreign worker is already in the U.S. on a different visa status, she/he can file a petition with USCIS to request a change of status to E-2. The visa needs to be renewed every two years and there is no limit to how many times an individual can renew.  However, as mentioned, the investor or worker must have the intention of returning to his/her home country when the visa expires or is terminated. An E-2 nonimmigrant can travel abroad and those who travel abroad may be granted an automatic two-year period of readmission when returning to the U.S.

Something that is important to keep in mind is that if a person does the change of status to E-2 while in the U.S. if the person does travel outside the U.S., he/she will have to go to the U.S. consulate and apply for the actual E-2 visa to be able to come back in.  The reason is because when a person does a change of status in the U.S., they are granted the E-2 nonimmigrant status, but not the actual E-2 visa that would go in the person’s passport that allows entry back into the U.S.  Of course if the person is outside the U.S. and applying for the E-2 visa for the first time, this will not be something they have to worry about because they will already have the actual E-2 visa in his/her passport.

Family Member of E-2 visa holders

Spouses and unmarried children under 21 years of age of E-2 visa holders are eligible to come to the U.S. and also obtain employment authorization. This means that family members can work in the U.S., and it doesn’t have to be for the E-2 investor’s company.  The family members do not have to be of the same nationality either.  For example, if the principal E-2 investor is from England, and the spouse was born in a country that is not a treaty country, the spouse will still be able to get E-2 dependent status. The family will apply for E-2 nonimmigrant status as dependents and usually have the same period of stay as the employee.

Not a Path to Lawful Permanent Residency (AKA Green Card)

As mentioned, although the E-2 status can be renewed indefinitely so long as the business is operational and generating profits, there is no path to gaining lawful permanent residency in the U.S. with this status.