E-2 Visa

Introduction

The E-2 Treaty Investor visa, open only to citizens of treaty countries, permits eligible foreign nationals who made a significant investment in the U.S. to enter the U.S. to direct their business. The E-2 visa may also be issued to essential employees and managers from the Treaty Investor’s home country.

The Attorneys at VisaPro will prepare and assist you with filing the required documents for the E-2 Treaty Investor Visa.

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Eligibility Criteria

An alien may be classified as a nonimmigrant treaty investor (E-2) if the alien:

• 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;
• Is seeking entry solely to develop and direct the enterprise; and
• Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status.

Investment: An investment is the treaty investor’s placing of capital, including funds and other assets (which have not been obtained, directly or indirectly, through criminal activity), at risk in the commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets.

Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The alien has the burden of establishing such irrevocable commitment. The alien may use any legal mechanism available, such as the placement of invested funds in escrow pending admission in, or approval of, E classification, that would not only irrevocably commit funds to the enterprise, but might also extend personal liability protection to the treaty investor in the event the application for E classification is denied.

Bonafide enterprise: The enterprise must be a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. The enterprise must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.

Substantial amount of capital: A substantial amount of capital constitutes an amount which is:

• Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
• Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
• Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital.

Marginal enterprise: For treaty investor purposes, an enterprise may not be marginal. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income, but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future income-generating capacity should generally be realizable within 5 years from the date the alien commences the normal business activity of the enterprise.

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Duration of Stay

A treaty investor may be admitted for an initial period of not more than 2 years. Requests for extensions of stay may be granted in increments of not more than 2 years. Since there is no limit on the number of extensions, the treaty investor can stay in the U.S. indefinitely.

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