What is the time limit for an E-2 Visa?
The E-2 "investor visa" is valid for periods of 2 years with unlimited extensions that need to be filed in order to keep the E-2 visa current, so, there is no specific period of time that a beneficiary and his/her family may remain in the U.S., as long as there is an ultimate intention to depart, as opposed to intending to pursue an immigrant visa (green card). For the E-2 visa, there is actually no requirement to even show a foreign residence.
Can I purchase a house, or make some other form of passive investment in the U.S. in order to qualify for an E2 visa?
No. The E-2 regulations require that the investment that is being made into the U.S. be considered “at risk.” For example, applicable regulatory language indicates specifically that stocks and undeveloped land are passive investments and thus fail to satisfy the appropriate regulations. In determining which investments satisfy this criteria one must ask whether the investment is subject to partial or complete loss if the investment does not succeed.
Do I merely need to provide USCIS with a business plan and a future intent to invest funds into the U.S.?
No. Although a business plan is an important part of an E-2 visa petition, for a new company, it is insufficient to indicate a future intent to invest a particular sum of money. As provided by applicable regulatory language, uncommitted funds are not considered sufficient even if proof of these funds are shown to exist in a bank account. In order to satisfy the E-2 visa standards, the funds have to be irrevocably committed to the new enterprise.
How can I possibly irrevocably invest a substantial sum of money into an enterprise in the U.S. if I am not sure to be granted the visa that allows me to enter and operate the business?
The regulations do make it clear that placing funds into an escrow account (a common type of third party holding account in the U.S.), will be considered satisfactory. So the way this could help is that a person could place their investment amount into an escrow account which irrevocably commits funds to a particular purpose, e.g. the purchase of office space or a store front, as long as a specific contingency is satisfied, such as being granted the E-2 visa. This provides a legal mechanism by which the investor can show that funds have been irrevocably committed, while it protects the investor’s money in case the E-2 visa is not granted, as the funds are then returned due to the failure to satisfy the contingency.
Do I have to invest one million dollars into a commercial enterprise to get the E-2 visa?
No. Many people confuse the E-2 visa process with the EB-5 green card investment category. The EB-5 green card category is an immigrant visa petition which, if approved, provides the investor with Legal Permanent Residence.
For the E-2 visa a substantial investment amount is required. The regulatory language does not provide a specific dollar amount, as opposed to the EB-5 category, however they do provide a test that is to be used. This test is termed the relative/proportionality test and considers the following elements:
(i) Whether the capital investment is substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
(ii) Whether the capital investment is sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and
(iii) Whether the capital investment is 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.
What if I inherit a business that is worth a substantial sum of money?
Unfortunately, inheriting a business in the U.S. does not qualify as an investment for E-2 purposes, however, inherited funds can be used to in turn invest in establishing a U.S. commercial enterprise for E-2 purposes.
Does the business have to show that it will be making a certain sum of money in order to be approved?
Per the regulatory language, a commercial enterprise is not allowed to be marginal in nature. What this means is that a qualifying E-2 commercial enterprise will have the capacity to generate more income for the investor and family then merely an amount required to live. Accordingly, whether the investment will create future job opportunities, and whether the enterprise will generate sums of money far above that which could be considered a living wage are important factors.
Can I invest capital and appoint a different person to enter the U.S. and operate the business?
Yes, assuming that the person being appointed is of the same nationality as the treaty employer and is either (1) an Executive or Supervisor or (2) an Essential Employee.
Who is considered to be an Executive or Supervisor?
Pertinent regulatory language provides that the position needs to be “principally and primarily” as opposed to merely “incidentally or collaterally” executive or supervisory in nature. The following considerations must be taken into account when determining whether the position satisfies the requirements:
- Does the position provide the person authority to determine policy and direction?
- Does the position provide supervision for a significant portion of the operation?
- Does the position provide supervision over low-level employees or is it of a higher supervisory nature?
- Does the person possess the proper executive/supervisory skills and experience?
- What is the salary of the position?
- What is the relationship of the position to the greater organizational structure?
- What percentage of the persons duties are routine staff work?
Who qualifies as an Essential employee?
To be considered an essential employee the person must show that they have a particular proven degree of expertise in the particular job duties required by the enterprise and that those duties are very specific in nature, thereby supporting the need for the particular persons abilities. |
