E-2 Investor Visas
E-2 Treaty Investor Visas
What an E-2 Case Must Establish
There is no single minimum investment amount that qualifies every E-2 case. The required investment is evaluated in relation to the nature and cost of the particular business. A lower-cost service business may require less capital than a manufacturing company, restaurant, transportation company, or other capital-intensive enterprise. The issue is whether the investment is substantial in proportion to the cost of establishing or purchasing the business and demonstrates a real financial commitment to its success.
A properly prepared E-2 case generally must establish that:
The investor is a national of a country that qualifies for E-2 treaty investor status.
The U.S. enterprise has the required treaty nationality.
The investment is substantial in relation to the cost of purchasing or establishing the enterprise.
The invested capital is genuinely at risk and committed to the business, rather than merely being held in an uncommitted bank account.
The source of the investment funds is lawful and the movement of those funds into the U.S. enterprise can be clearly documented.
The enterprise is real, active and operating, or is sufficiently developed to begin operations upon visa issuance.
The enterprise is not marginal and has the present or future capacity to generate more than a minimal living for the investor and family, or otherwise make a significant economic contribution.
The principal investor will develop and direct the enterprise through ownership, control, or another qualifying means.The investor intends to depart the United States when E-2 status ends.
Source and Path of Funds
One of the most important parts of an E-2 case is proving where the investment money came from and how it reached the U.S. business. It is not enough to show that money ultimately appeared in a company account. The evidence should establish a coherent and documented path from the lawful source of the funds through each material transfer until the money was invested or committed to the enterprise.
Depending on the case, investment funds may come from savings, employment income, business income, the sale of real estate or other assets, gifts, inheritance, or qualifying loan proceeds. The documentation required depends on the particular source. When the source or transfer history is complicated, we work with the client to organize the record so that the financial history can be understood and verified.
The Investment Must Be Committed and At Risk
Money sitting in a personal or business bank account, without more, normally does not establish a qualifying E-2 investment. The case should demonstrate that the investor has made a genuine financial commitment to the enterprise. Depending on the business, this may include expenditures for equipment, inventory, leases, deposits, licenses, professional services, improvements, vehicles, technology, insurance, payroll, marketing, acquisition costs, or other legitimate operating expenses.
For the purchase of an existing business, escrow may sometimes be used to protect the investor while still demonstrating an irrevocable commitment conditioned on issuance of the E-2 visa. The structure must be considered carefully before funds are transferred or contracts are finalized.
A Real and Operating Business
An E-2 enterprise cannot be a passive investment. The business must be a bona fide commercial enterprise that produces goods or services for profit. A paper company, undeveloped concept, passive ownership interest, or investment held primarily for appreciation will not ordinarily satisfy the E-2 requirements.
For a startup, the evidence should show that the enterprise has moved beyond the planning stage and is positioned to conduct business. This often includes the formation and ownership documents, capitalization, business premises where appropriate, licenses, contracts, equipment, banking activity, expenditures, operating agreements, vendor or customer relationships, and a credible business plan.
Marginality and the Business Plan
The E-2 regulations do not require every new business to be profitable immediately. They do require more than an enterprise created merely to provide a minimal living for the investor and family. A new enterprise may qualify based on its future capacity, generally considered within a reasonable period, to generate meaningful economic activity.
For that reason, the business plan should not be treated as a decorative attachment. It should be consistent with the actual capitalization, operating model, staffing plan, expenses, market, and financial projections of the business. The documentary evidence and the business plan must tell the same story.
Develop and Direct
The principal E-2 investor must be coming to the United States to develop and direct the enterprise. This is commonly established through at least 50 percent ownership, although control can sometimes be demonstrated through other corporate or managerial arrangements. The investor may be actively involved in the business, particularly in a startup, but the case should establish that the investor is coming to direct and develop the enterprise rather than simply to fill an ordinary worker position.
E-2 Employees
Consular Processing and E-2 Strategy
E-2 visa procedures are not identical at every U.S. embassy or consulate. Although the underlying law is the same, individual posts may have different filing procedures, document formats, page limits, submission systems, and interview practices.
We prepare the case with the requirements of the particular post in mind rather than treating every E-2 application as if it were filed in the same manner.
For clients already in the United States, E-2 classification may in appropriate circumstances also be requested through USCIS. Whether consular processing, a change of status, or an extension of status is appropriate depends on the client’s circumstances and objectives.
Our Approach to E-2 Representation
We become involved in E-2 cases as early as possible because decisions made before the application is filed can determine the strength of the final case.The ownership structure, source of funds, sequence of transfers, business purchase agreement, lease, licensing, capitalization, and timing of expenditures should be considered as parts of one immigration strategy.
Our representation may include review of the proposed business or acquisition, entity and ownership structure, investment strategy, source and path of funds, contracts and leases, licensing issues, business-plan evidence, supporting documentation, application preparation, legal presentation, and preparation for the consular interview. The objective is to present a clear, well-documented case in which the business facts and the immigration requirements fit together.
E-2 Visas for Startups, Purchases and Existing Businesses
E-2 cases can involve newly created businesses, the purchase of an existing enterprise, franchises, or additional investment in an operating company. Each structure presents different issues. A startup must demonstrate that it is sufficiently developed and ready to operate. An acquisition requires careful documentation of the purchase, ownership, valuation, transfer of funds, and operation of the business. Existing businesses may require evidence of financial performance, staffing, continued investment, and future operations.
Direct Attorney Involvement
Discussing an E-2 Case
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