E2 Treaty Investors Visa

• Introduction
• The E2 Visa Statute
• Treaty Countries for E2 Visas
• Eligibility Requirements for E2 Treaty Investors
• E2 Treaty Investor Application Process
• Being on E2 Status as a Treaty Investor
• Derivative E2 Family Members
• Advice for E2 Treaty Investors

 

Introduction

The E-2 (E2) Treaty Investors visa is a nonimmigrant visa for nationals of countries with which the United States maintains a treaty of commerce and navigation who intend to enter the United States in order to invest their own funds (such that the invested funds are at risk) into a U.S. enterprise. The E2 visa is also available for certain employees of the principal E2 investor from the same country of nationality, or for employees of an individual or company abroad that would qualify as an E2 treaty investor. For those who are eligible, the E2 visa is a powerful tool for investing money in the United States. This article will explain the requirements for qualifying as an E2 Treaty Investor, the E2 treaty investor application process, and the rules for being on and maintaining E2 status (including derivative E2 visas for family members).

Follow this link to learn about E2 employee visas.

The E2 Visa Statute

The statute that provides for the E2 visa category is found in section 101(a)(15)(E)(ii) of the Immigration and Nationality Act (INA). The statute defines a person entering the United States with an E2 visa in pursuance of provisions of a treaty of commerce and navigation between his or her country of nationality and the United States as a person who enters:¹

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.

“Substantial” is defined in section 101(a)(45) with respect to capital as “such an amount of … capital as is established by the Secretary of State, after consultation with the appropriate agencies of Government.

Treaty Countries for E2 Visas

In order to be eligible for an E2 visa, a foreign investor must first determine whether he or she is a national of a country with which the United States has a treaty of commerce and navigation. The principal E2 may only hire employees who qualify as nationals from the same country. However, where an E2 business has two nationalities due to equal ownership between two persons who are nationals of two different E2 treaty countries, it may hire E2 workers from either country.

The following is a chart containing all of the countries that an alien may be a national of and be eligible for an E2 visa:

Both Department of State (DOS) regulations and the Foreign Affairs Manual (FAM) state that the authorities (laws) of the state from which the applicant claims nationality will determine whether he or she is in fact a national.²

The nationality of the business is determined solely by the nationalities of the owners of that business.³ The country where the business is incorporated is not relevant for purpose of E2 eligibility.⁴ Nationals of treaty countries must own at least 50% of a business for it to qualify as an E2 investor.⁵ Except where a business is controlled equally by nationals of two treaty countries, a business may only have one nationality for E2 purposes.⁶ Where a business is controlled equally by nationals of two treaty countries, persons from either treaty country will be eligible for E2 visas.⁷

Where an E2 investor or employee possesses dual nationality, he or she must choose only one for E2 purposes.⁸ An E2 treaty investor cannot be a U.S. citizen or lawful permanent resident (LPR).⁹

Eligibility Requirements for E2 Treaty Investors

Pursuant to DOS regulations found in 22 C.F.R. 41.51(b)(1), an applicant for a principal E2 visa must meet the following criteria:

(i) Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and
(ii) Is seeking entry into the United States solely to develop and direct the enterprise; and
(iii) Intends to depart from the United States upon the termination of E2 status.

Definition of “Investment” for E2 Purposes

Pursuant to regulations found in 22 C.F.R. 41.51(b)(7), an “investment” for E2 purposes entails the treaty investor placing his or her capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. The treaty investor must be have possession of and be in control over the funds that he or she is investing. “Risk in the commercial sense” requires that the capital must be subject to a loss if investment fortunes reverse. Qualifying capital includes both unsecured personal business capital and capital secured by personal assets. In order for capital to be “invested,” it must be irrevocably committed to the enterprise in which it is invested. The burden is on the applicant to demonstrate that the investment is “irrevocably committed.”

Inheritance of an enterprise does not constitute an “investment” in that enterprise.¹⁰ However, funds that were obtained legitimately through an inheritance may be invested provided that all of the regulatory requirements are met.¹¹

The requirement that the funds be at “risk” precludes non-profit organizations from qualifying for E2 purposes.¹² Where the investment funds' availability arises from indebtedness, the investment only meets the “risk” requirement if the funds are collateralized by the applicant's personal assets. A reasonable amount of cash held in a business bank account or a similar fund used for business operations may be counted as investment funds.

The requirement that the funds be “irrevocably committed” requires that the applicant be “in the process of investing” and at least close to the start of actual business operations.¹³ An applicant who only demonstrates the intent to invest will not be eligible for an E2 visa.¹⁴ However, if the applicant's purchase of a business qualifies as an E2 investment but is conditioned upon the applicant being approved for an E2 visa, the investment will qualify provided that the funds are held in escrow and will be released upon the applicant's being approved.

The actual payments for leases and rents may be calculated toward the total investment but are limited to the funds devoted to these expenses in any given month.¹⁵ However, neither the market value of the leased equipment nor the rental cost (unless the rent has been paid in advance) is representative of the investment.¹⁶ Money spent on goods and equipment may be counted in the investment total provided that it is demonstrated that the goods or equipment are being put to use in the commercial enterprise.¹⁷ Rights to intangible or intellectual property may be considered capital assets provided that their value can reasonably be determined.¹⁸

The invested funds cannot be obtained, directly or indirectly, through criminal activity.¹⁹ However, “criminal activity” only encompasses activity that would be illegal under U.S. law and not the laws of the country where the money was obtained.²⁰

Substantiality of Investment

Recall that section 101(a)(45) of the INA requires a “substantial” investment as defined by the Secretary of State. However, neither regulations nor the FAM provide a set number for what constitutes a “substantial investment.” Provisions found in 9 FAM 41.51 N10.2 instruct consular officials to consider the following in determining on a case-by-case basis whether an investment is “substantial” for E2 purposes:

1. Whether the investment is substantial in a proportional sense (that is, substantial relative to the value of the bona fide enterprise);
2. Whether the investment is sufficient in order to ensure the treaty investor's financial commitment to the successful operation of the enterprise;
3. Whether the investment is of a magnitude to support the proposition that the treaty investor will successfully develop and direct the enterprise.

The value of the enterprise depends on the nature of the enterprise.²¹ Provided that all other requirements for E2 treaty investor status are met, the value of the enterprise and the cost of business are not determinative of whether an applicant is eligible for an E2 treaty investor visa.²²

The FAM directs consular officers to apply a proportionality test in determining whether an investment is “substantial.”²³ In order to do this, consular officials should compare the size of the investment to the value of the enterprise. The test applies a “sliding scale” such that the lower the cost of the enterprise is, the larger the amount of the investment should be (relative to the cost of the enterprise) in order for the investment to be considered “substantial.” While there are no minimum requirements, the FAM instructs that an investment of 100% of a business' value in a business that is valued at $100,000 or less would normally satisfy the requirement. At the other end of the scale, an investment of 10% in a business that is valued at $100 million would likely meet the standard due to the magnitude of the investment itself.

Consular officials are instructed to consider whether the investment is sufficient to ensure the treaty investor's commitment on a case-by-case basis, taking into account both the size of the investment itself and the scope of the project that the money is being invested into.²⁴

Both the regulations and the FAM provide that an investment in a marginal enterprise is not sufficient for E2 eligibility. The FAM defines a “marginal enterprise” as one that does not have the present or future capacity to provide more than enough income to provide a living for the treaty investor and his or her family.²⁵ Consular officers are instructed to consider whether the application indicates that the treaty investor's projected future capacity is realizable within five years from the date that normal business activities for the enterprise will commence.

Bona Fide Enterprise

Regulations found in 22 C.F.R. 41.51(b)(8) define a “bona fide enterprise” as being a real and active commercial or entrepreneurial undertaking that is producing a service or commodity for profit, and that meets all legal requirements for doing business in its particular jurisdiction in the United States.

The Develop and Direct Requirement

An E2 Treaty Investor must meet the “develop and direct” requirement. Regulations found in allow for this requirement to be met by controlling the enterprise through ownership of at least 50%, by possessing operational control, or by other means.²⁶

The FAM provides that a joint venture or equal partnership between two parties with 50% ownership is generally sufficient for establishing control where each partner retains full management rights and responsibilities.²⁷ However, an equal partnership with more than two partners will not be sufficient for demonstrating control through ownership.²⁸

It is possible, although uncommon, to establish eligibility for an E2 Treaty Investor visa while owning less than 50% of the enterprise. For either case, USCIS recommends the following evidence (where applicable) to establish the applicant's capacity to “develop and direct”:

A detailed list of all owners and their percentage of ownership (including signatures from all owners in order to evidence that the applicant possesses a controlling interest);
Capitalization table;
Stock purchase agreement, term sheet, letter of intent, or memorandum of understanding;
By-laws;
Meeting minutes;
Stock certificates or stock ledger;
Articles of incorporation/organization;
Annual report to the SEC;
Partnership agreement;
Franchise agreement.

Intention to Depart Requirement

The applicant's expression of unequivocal intent to depart the United States upon the termination of E2 treaty investor status is generally sufficient for meeting this requirement.²⁹ Being the beneficiary of an immigrant visa petition or approved labor certification will not render the applicant ineligible for E2 status by itself.

E2 Treaty Investor Application Process

If the applicant is seeking change to E2 status in the United States, he or she must file a Form I-129, Petition for a Nonimmigrant Worker. If the applicant is filing at a consular post abroad, he or she must file a DS-160 visa application along with a DS-156E supplemental form. The applicant must provide supporting evidence of the investment, and the burden of proof is on the applicant.³⁰

If a visa is approved, the period of validity depends on the treaty country, but in most cases the validity of the approved visa is for 5 years.

Being on E2 Status as a Treaty Investor

An E2 treaty investor may be admitted to the United States for an initial period of 2 years.³¹ An E2 treaty investor may apply for an extension of stay by filing a Form I-129 and E Supplement, and if granted, the extension will be for a maximum of 2 years.³² In order to be eligible for an extension of stay, the applicant must have remained in lawful E2 status and have been physically present in the United States at the time of the extension application.³³ There is no limit to the number of extensions of stay that an E2 Treaty Investor may receive. It is important that the application for an extension of stay be comprehensive and accurately reflects any substantial changes in the enterprise from the last time that E2 status was approved that may have an effect on the E2 Treaty Investor's continuing eligibility for E2 status.

An E2 treaty investor is only permitted to engage in employment that is consistent with the particular investment for which he or she was approved for the E2 visa.³⁴

If there is a substantive change in the terms and conditions of the E2 treaty investor's E2 status, he or she must file an amended Form I-129 and E supplement and request an extension of stay.³⁵ The E2 treaty investor must submit evidence that the changes will not render him or her ineligible for E2 classification.³⁶ This is not a requirement if a change is not substantive (having bearing on the E2 treaty investor's continuing eligibility for E2 status). In the case of uncertainty as to whether an amended petition is required, the E2 treaty investor may submit a Form I-129, with fee, along with a complete description of the change to USCIS and request advice on whether an amended petition is needed.³⁷

Derivative E2 Family Members

Spouses and children of E2 treaty investors are eligible for derivative E2 visas if otherwise admissible.³⁸ A derivative E2 beneficiary may be admitted for the same period as the principal and is eligible for extensions of stay along with the principal (provided that the qualifying relationship is still applicable).³⁹ E2 derivative spouses may apply for and obtain an employment authorization document (EAD).⁴⁰ E2 derivative children may not obtain employment authorization but may attend school while on E2 status.⁴¹

Advice for E2 Treaty Investors

An investor who is looking for immigration investment solutions in the United States should always consult with an experienced immigration attorney. An experienced immigration attorney will be able to help the investor determine the best solution given his or her situation and investment objectives. Given the magnitude of the investment required for E2 treaty investor classification, all available options under U.S. immigration law should be carefully considered. If it is determined that pursuing an E2 visa is the best path forward, an experienced immigration attorney will be an indispensable asset in helping the investor meet all of the requirements for E2 status. While on E2 status, an experienced immigration attorney will be able to help the investor maintain E2 status and remain eligible extensions of status.

There are other options available for investors who cannot meet the requirements for an E2 treaty investor visa. In certain circumstances, the investor may be able to instead seek classification as an E2 employee or even pursue a different nonimmigrant visa to meet his or her business goals.

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1. INA § 101(a)(15)(E)
2. 22 C.F.R. § 41.51(b)(6); 9 FAM 41.51 N2
3. Id.
4. 9 FAM 41.51 N3.2
5. 9 FAM 41.51 N3.1
6. 9 FAM 41.51 N.3.3
7. Id.
8. Id.
9. 9 FAM 41.51 N14.1
10. 9 FAM 41.51 N8.1-1
11. Id.
12. 9 FAM 41.51 N8.1-2 [for the paragraph]
13. 9 FAM 41.51 N8.1-3 [for the paragraph]
14. Matter of Chung, 15 I&N Dec. 681 (RC 1976)
15. 9 FAM 41.51 N8.2-1
16. Id.
17. 9 FAM 41.51 N8.2-2
18. 9 FAM 41.51 N8.2-3
19. 8 C.F.R. § 214.2(e)(12); 9 FAM 41.51 N8.1-1
20. 62 FR 48138 at 48142 (Sept. 12, 1997)
21. 9 FAM 41.51 N10.3 [for the paragraph]
22. Matter of Walsh & Pollard, 20 I&N Dec. 60 (BIA 1988) [A subsidiary of a British company set up to fulfill contractual obligations qualified as an E2 treaty investor despite investment of less than $50,000]
23. 9 FAM 41.51 N10.4 [for the paragraph]
24. 9 FAM 41.51 N10.5
25. 9 FAM 41.51 N11 [for the paragraph]
26. 8 C.F.R. 41.51(b)(11)
27. 9 FAM 41.51 N12
28. Id.
29. 9 FAM 41.51 N15 [for the paragraph]
30. Matter of Khan, 16 I&N Dec. 138 (BIA 1977); Matter of Shaw, 15 I&N Dec. 794 (BIA 1976)
31. 8 C.F.R. § 214.2(e)(19)(i)
32. 8 C.F.R. § 214.2(e)(20)
33. Id.
34. 8 C.F.R. § 214.2(e)(8)(i); Matter of Laigo, 15 I&N Dec. 65 (BIA 1974)
35. 8 C.F.R. § 214.2(e)(8)(iii)
36. Id.
37. 8 C.F.R. § 214.2(e)(8)(v)
38. 8 C.F.R. § 214.2(e)(4); 22 C.F.R 41.51(b)(3)
39. Id.
40. INA § 214(e)(6); Cable, DOS, 02-State-17328 (Jan. 29, 2002), published on AILA InfoNet at Doc. No 02013032
41. IFM §§ 15.4(e), 15.5(d). Dependent sons and daughters of Taipei Economic and Cultural Representative Office employees may obtain an EAD [8 C.F.R. § 274a.12(c)(2); 9 FAM 41.22 PN4

Resources and Materials:

Chang, Henry J.. “E-2 Visas for Investors in Smaller Businesses.” Immigration Options for Investors and Entrepreneurs. 2nd ed. Washington, D.C.: AILA, 2010. 13-31. Print. AILA's Occupational Guidebooks.

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1012-1017, Print. Treatises & Primers.

“Understanding E-2 Requirements,” USCIS, Retrieved on October 8, 2015, available at http://www.uscis.gov/eir/visa-guide/e-2-treaty-investor/understanding-e-2-requirements [link]