The E-2 visa is particularly useful for business owners and managers who need to remain in the U.S. for extended periods of time in furtherance of the investment. The E status has the potential of indefinite renewals as long as the business is real, operating and generating enough income to support more than the investor and his/her family. The E classification is one of the best alternatives for a foreign national to remain working in the U.S. when he/she has exhausted the allowed time in an H and/or L status. The E status can also be used by non-degree workers and for self-petitioning. Additionally, the spouse of the E investor can apply to obtain work authorization.
In order for a foreign investor or company to apply for an E-2 visa, the U.S. must have the requisite treaty with the applicant’s country of citizenship. A list of the treaty countries that support E visa applications can be found in the Foreign Affairs Manual (“FAM”) and at the Department of State’s website. Treaties were first negotiated with Costa Rica (1852), Argentina (1854), Switzerland (1855) and Yugoslavia (1882). After World War II, a flurry of negotiation ensued between the U.S. and other nations to promote trade, and a significant number of the treaties currently supporting E visa applications came into existence. The countries most recently added to the list were Chile and Singapore in 2004. President Obama signed the legislation that would add Israel to the list of countries eligible for E-2 recently as well. However, the implementation of this visa category will not be effective until the terms and conditions of the final agreement are determined between the two countries.
The individual investor or employee and the E business must have the nationality of the same treaty country. The business’ nationality is determined by the nationality of the majority owners of the business. When the treaty business is at least 50% owned by nationals of the same treaty country, the nationality requirement is satisfied. Nationals of a treaty country who are also U.S. citizens or U.S. legal permanent residents are not considered nationals of the treaty country and cannot be counted toward determining the 50% ownership for purposes of E-2 eligibility.
An E-2 Visa applicant must also show that:
- He/she has invested or is actively in the process of investing funds that are at risk or subject to loss if the business fails;
- The enterprise is real and operational;
- The investment is substantial and proportional to the cost of the enterprise;
- The investment is not marginal. The business must generate sufficient present or future income to provide a minimal living for more than the investor and his/her family;
- The investor is coming to the U.S. to develop and direct the business;
- If the applicant is not the principal investor, he/she must be employed in a supervisory, executive or highly specialized capacity;
- The applicant intends to depart the U.S. when the E status terminates.
In addition, the source of the funds must be funds in which personal assets are involved. A loan cannot be secured against the business assets at issue but can be secured against other personal assets of the investor. At the time of the application, the investor must already be operating the business, or be nearing the start of operations, not simply in the stage of signing contracts.
In order to show that a new business is not marginal, the investor should submit a reliable and well-developed business plan outlining how the business will grow and support U.S. jobs over a five-year period. Financial projections must be supported by resources and information explaining how the projections were developed.
An E visa is typically issued for five years; however, the I-94, providing the length of stay allowed in the U.S., is given for two years at a time. In practice, a foreign national can depart the U.S. before the end of the five-year visa expiration and obtain a new I-94 providing an additional two years of authorized stay, which makes the initial visa good for seven years. Extensions of stay may be applied for indefinitely, as long as the enterprise is viable and the applicant continues to meet the visa qualifications.
A spouse, as well as unmarried children under the age of twenty-one, regardless of nationality, are allowed to enter the U.S. with the principal E visa holder and obtain E visa status. A significant benefit of the E visa is that the spouse of the principal E visa holder is able to seek employment authorization from the Department of Homeland Security; dependent children are not allowed to apply for work authorization but can attend school and travel. The spouse cannot begin working until he/she receives the employment authorization document (“EAD”). It typically takes ninety days for the EAD to be processed.
If you have any questions or need further information regarding an investor visa, please contact Sevil Ozisik.
