An E-2 Nonimmigrant is defined as: A foreign national entitled to enter the United States as a nonimmigrant under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign country of which he/she is a national; The foreign national must be coming to the United States solely to develop and direct the operations of an enterprise in which he/she has invested, or of an enterprise in which he/she is actively in the process of investing a substantial amount of capital; and Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status
E-2 Eligibility Requirements Overview
A Treaty of Freedom, Commerce and Navigation or Bilateral Investment Treaty or other arrangements such as NAFTA must exist between the United States and the country of the investor’s nationality.
The investor must possess the nationality of the treaty country. A treaty investor may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status.
The E-2 visa is a nonimmigrant visa and will not lead to the investor obtaining a “green card” except in situations where an EB-1/FORM I-140 can be filed. However, there is no limit on the length of time an investor may remain in E-2 status as long as the investment is active and on-going and the treaty remains in force. Note: the investor must maintain an unequivocal intent to depart the US upon the termination of her or his status or the investment.
The investment (or business) must be at least 50 percent owned by the investor. As discussed below, a business that is at least 50 percent owned by the national(s) of the relevant treaty country will be eligible for E status, if certain other requirements are met.
The investor must have the ability develop and direct the business. The ability to develop and direct the business can be established by owning at least 50 percent of the interest or shares of the business; and the investor must have full and complete authority, power and discretion to manage and control the business, affairs and property of the company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the company’s business.
The investor must have possession and control of the funds invested and the investment cannot be based on a third party investing. The investor must have received the funds by legitimate means (i.e., savings, gift, inheritance or legal contest) and have control and possession over the funds.
The investment must be placed at risk by the investor placing capital, (including funds and other assets) at risk in the commercial sense, with the objective of generating a profit. The investment capital must be subject to partial or total loss if investment fortunes reverse. The investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Indebtedness secured by the assets of the business is not a qualifying investment. Unsecured loans or loans secured solely by the investors own personal assets are considered a qualifying investment. Capital that is in the process of being invested must be irrevocably committed to the enterprise.
The investment enterprise or business must be a bona fide commercial undertaking. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.
The investment must be substantial. The US Citizenship and Immigration Services (USCIS) or US Consulate will look to the amount invested weighed against the total value of the enterprise, or established enterprises, or the amount normally considered necessary to establish a viable enterprise for new businesses.
The investment must not be marginal. The investment cannot be solely to earn a living for the investor or the investor’s immediate family. It must expand job opportunities, generate other sources of income and must generate an income substantially above what would be considered a living, and the investor will not work simply as a skilled or unskilled worker.
The value of goods or equipment transferred to the US may be counted as part of the investment if those goods or equipment will be put to use in the enterprise. Payments for the lease or rent of the property, facility or equipment may be calculated toward the investment but are limited to only one month. The amount spent for the purchase of equipment and for inventory already in the possession of the investor may be counted as part of the qualifying investment.
Either the historical cost or market value of an existing asset may be counted as part of the investment.
Dependents of E-2 Treaty Investors
The spouse and dependent (unmarried and under age 21) children of an E-2 Nonimmigrant treaty investor are eligible for the same classification as the principal. The dependents are permitted to engage in tourism or attend school. The spouse, after being admitted to the US in E-2 status, may apply for employment authorization by filing Form I-765 with the USCIS. Upon approval and receipt (which may take up to 90 days) of the employment authorization document (EAD), the spouse may work for any employer. Employment authorization is not available for dependent children.
How to Apply/Where to Apply for E-2
An investor already in the US may apply for a change of status to an E-2 through application to the USCIS. If approved, the change of status to E-2 will be granted for a period of not more than 2 years. If the investor does not leave the US and apply for an E-2 visa with the US Consulate, an application requesting the extension of the E-2 status must be made to USCIS before its expiration. However, in order to gain admission to the US, an E-2 visa must be obtained from the US Consulate. In order to obtain an E-2 visa, an investor must register the company with the US Consulate in their country by submitting certain applications and documentary evidence. Upon registration of the company by the US Consulate, the investor will be granted an interview and, if otherwise qualified, issued the E-2 visa. This process must be planned for well in advance. The typical processing times at some consulates can take up to 6 weeks or longer before the company is registered, the applicant is notified, an interview is granted and a visa issued. The procedure may vary between consular posts and the applicant should consult the posts website for current procedures and requirements. Whether applying for a change of status with USCIS or registering the company and applying for an E-2 visa, the process is complex and document intensive. Attached to this memo is a list of documents and information required to begin the application process. Certain applications are filed only with USCIS and others are filed only with the US Consulate in the investor’s country of nationality. While the procedures are consistent when filing with USCIS, the procedures when filing with the US Consulate vary from consulate to consulate. In no case should an investor attempt either filing without the assistance of a US immigration attorney knowledgeable in business immigration matters.
Period of Visa Validity and Period of Admission for E-2
The validity period of the E-2 visa stamp placed in the investor’s passport depends upon reciprocity with the country of the investor’s nationality. While this is generally, five years in some instances it is as short as 3 months. After obtaining the E-2 visa, the investor may be admitted to the US for an initial period of not more than 2 years. Before expiration of the period of lawful admission, the investor must depart the U.S.† At the time of the investor’s next admission to the US, he or she will be admitted for a period of not more than 2 years. (However, if the investor has no desire to depart the U.S. an extension may be requested by filing Form I-129 with supporting documents to the USCIS.) Upon expiration of the E-2 visa in the passport and upon the investor’s subsequent travel abroad, she or he must obtain a new E-2 visa at the U.S. Consulate by re-registering the company as described in paragraph 20 above. Not every member of a family travels outside the US together. Each time an E-2 foreign national enters the US, he or she is usually admitted for 2 years; it is common that the period of authorized stay of various family members is not identical, because they entered the US at different times. It is extremely important that no family member’s period of authorized stay lapse. The E-2 visa in the passport does govern the period of authorized stay. Overstaying can have serious immigration consequences including triggering the so-called 3 and 10 year bars of inadmissibility. I-94 cards evidencing the period of lawful admission are no longer issued. Effective April 26, 2013, DHS began authorizing the admission process. A foreign national lawfully admitted to the United States is no longer required to be in possession of a preprinted I-94. A record of admission printed from the CBP website constitutes a lawful record of admission.
Forms Required to Request E-2 Classification
If requesting a change of status to E-2 through USCIS, submit Form I-129 Petition for Nonimmigrant Worker and the E1/E2 Classification Supplement. If requesting issuance of an E-2 visa through a U.S. Consulate, the required form is DS-156E Nonimmigrant Treaty Trader/Investor Application Important Information
When Starting a Business in the United States
When establishing a business in the U.S. certain federal government regulations and requirements must be followed. There may be state and local requirements as well. For example, the Internal Revenue Service (IRS) is the U.S. government agency responsible for tax collection and tax law enforcement. You can find valuable information on its website at www.irs.gov. There may be other federal requirements and you should consult your CPA, tax lawyer or business lawyer for guidance.
Services Performed During A Typical E-2 Case:
• Examine your unique facts in order to identify any problems or issues, and discuss with you the best approach in dealing those problems or issues.
• Create an online account for you to be able to follow your case process, upload and download questionnaires, forms and supporting documents. We have created this to eliminate most of the time lost with international mailings.
• Prepare your immigration or Department of State forms for you and any family members.
• Prepare attorney certified copies of your original documents for submission to the USCIS and return the original documents to you.
• Prepare your required statement of intent.
• Prepare an attorney cover letter for your submission and combine it with the USCIS forms, declarations and evidence to create a well-documented submission that avoids novice mistakes, and submit it to the appropriate USCIS Service Center or U.S. consulate.
• Mail the receipt notice to you and show you how you can use the USCIS website to monitor the processing of your case.
• Show you how to use the USCIS processing time reports to determine if your case is taking too long.
• Monitor the progress of your petition with the USCIS Service Center and contact them if they make any errors or are not processing as fast as they should.
• Supply you with copies of all correspondence sent to my office from the USCIS about your case. • Contact the USCIS to resolve any mistakes they might make during the processing of your petition.
• Contact the U.S. Consulate to resolve any mistakes they made during the processing of your E-2 visa.
• Be there throughout the entire process to answer your questions about the USCIS and/or Consular processing as they come up.
E-2 Treaty Investor Visa - Full Service Representation $6,590.00 + USCIS filing Fee $1,685.00 for investor.