E-2 Visa for Treaty Investors
An E-2 Visa is for individuals from a country with which the US has a treaty of “friendship, commerce and navigation” to come here “solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.” INA § 101(a)(15)(E)(ii). The nationality of the company must get traced back to the same country as the individual. If you plan to carry on substantial trade in your new business with your home country, you should consider E-1 status as well.
This visa is available to the primary investor as well as key employees from the same home country including executives, supervisors, essential services employees and principal employers. Their spouses and children also qualify for E-2 visas.
How is “investment” defined?
“Investment” is the placing of capital, including funds and other assets, at risk in a commercial enterprise in expectation of generating a profit. The investor must personally possess and control the capital and commit it irrevocably to the US enterprise, in a manner that makes it subject to partial or total loss.
How much money?
For an E-2, you must plan to place a reasonable amount of cash into the business to account for routine business operations. It must be a “substantial” investment. USCIS uses a “proportionality” rule to determine what a substantial investment is: “the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital.” 8 C.F.R. §214.2(e)(14)(iii).
There is no bright-line rule that, say, $100,000 must be invested. The required amount actually depends on the nature of the business, the total cost of creating the enterprise, and how much money is required for the business to succeed. Moreover, in addition to cash, you can invest property, like a machine, or intangible property, like a patent.
Lawfully Procured Funds
USCIS is also taking a hard look at the lawfulness of the funds. Your investment capital must have a lawful source and must not have been “obtained, directly or indirectly, through criminal activity.”
Planning Your Strategy
Sometimes it might make sense for you to come to the US initially and temporarily on a B-1 business visitor visa to research business options and begin investing the capital; then apply for an E-2 visa to run the business. Under some circumstances it could also make sense for you to hold some of the funds back to show that there is enough money to keep the operation going during the startup phase.
What type of business?
For an E-2, your enterprise should be entrepreneurial and commercial. To apply, you should have a comprehensive, detailed business plan to submit to USCIS. I recommend that it should cover at least 5 years into the future.
The US has treaties with these countries for E-2 Investor Visas:
- Bosnia & Herzegovina
- Congo (Brazzaville)
- Congo (Kinshasa)
- Costa Rica
- Czech Republic
- Slovak Rep.
- South Korea
- Sri Lanka
- Trinidad & Tobago
- United Kingdom