E2 Visa: Treaty Investor Advisory in the Wake of Reform

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The E2 visa is a great temporary option for nationals from treaty countries looking to invest a substantial amount of capital in a bona fide U.S. business.

Quick Description of the Requirements

1.E2 applicant must be a national of E2 treaty country
A treaty country is one that maintains a treaty of commerce and navigation with the United States.  Currently, eighty countries maintain such treaties for E2 purposes.  An E2 applicant must be a national from one of those countries.

2.E2 applicant must make an investment
An investment is where the E2 applicant places capital or other assets at commercial risk with the goal of generating a profit.  Capital is considered a true investment when it is subject to partial or total loss.  Said capital must not have been obtained illegally or via criminal activity.

3.The investment must be a substantial amount of capital
The amount of capital is measured in relation to the enterprise that the E2 applicant seeks to create or purchase, and must be large enough to ensure the successful development of the enterprise.  The lower the overall cost of the enterprise, the higher the investment must be to be considered substantial.

4.The investment enterprise must be bona fide
Put another way, the business that the E2 applicant seeks to invest in must not be marginal.  A marginal enterprise is one that does not have the present or future ability to produce enough income to provide a minimal living for the treaty investor and his or her family.  Therefore, a bona fide enterprise is one that has the present or future capacity to generate adequate living expenses for a treaty investor and his or her family.  If the enterprise cannot generate adequate living expenses immediately, it must have the capacity to generate such income within five years from the date that the treaty investor’s E2 classification is granted.

5.Others who may use the E2 visa
Treaty investors may also bring their employees on an E2 visa.  Employees of treaty investors must be of the same nationality as the treaty investor.  Both investors and employees of investors may bring their spouses and unmarried children under twenty-one years of age.  The family members need not have the same nationality as the treaty investor or employee.

Possibility of Reform
At present time, the E2 visa is a good temporary option, but not a path to citizenship or permanent residence in the United States.  It is a nonimmigrant classification, valid for two years at a time with the possibility of renewal.  The E2 visa may be renewed indefinitely, but all E2 visa holders must intend to return to their home countries when their status expires or is terminated.

The temporary nature of the E2 visa may change through immigration reform.  Many E2 visa holders are pushing to stay in the country permanently and find it unfair that after creating economic benefits for the U.S. they are required to leave.   These treaty investors want the new immigration reform bill to grant them a path to citizenship.
Some scholars add that they hope the E2 visa can be transformed into permanent status for small business owners.  At a time when many countries are vying for high tech entrepreneurs, E2 visa holders who own ice cream shops and nail salons are feeling left out of the political mix.  While the U.S. struggles to supply enough jobs to meet demand, it would behoove legislators to consider making E2 treaty investors a part of the long-term solution.

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