With the booming U.S. economy, many foreign investors are seeking to start a business in the United States or buy existing one. In this article we highlight the advantages and requirements of the E-2 visa.
An E-2 non-immigrant may engage in self-employment, may remain in the United States indefinitely (must renew status), and is not required to maintain ties with the home country. Spouse and children may follow to assist in the enterprise.
1. There must be a Treaty of Friendship or a Bilateral Investment Treaty (BIT) between the United States and the investor’s country of origin.
2. The investor must be willing to put funds at risk with the idea of making a profit. What this means is that you are making an investment in your company in the same way as you would make an investment in the stock market, and that the money you are putting up is not a loan that you expect to be paid back with interest.
- You must show that you do not have an expectation of repayment with interest but that you have an expectation of making a profit.
3. The invested funds must be the investor’s personal unsecured capital or funds loaned and secured by personal assets. The property securing a loan can be the investor’s personal residence. The invested funds cannot come from or be secured by a business entity.
- The important thing here is to show with documents the source of where your funds are coming from.
4. The funds must come from a legitimate source such as inheritance, gift, or savings.
- This requirement is to ensure that the investment money is not coming from black market sources.
5. The invested funds must be irrevocably committed.
- Having a business bank account with sufficient funds for routine business operations. Other evidence may be commitment to a lease or the purchasing of equipment.
6. The business must be a genuine commercial undertaking. It cannot be a passive, speculative shell company held for passive investment purposes.
7. The investment must be substantial. Most E-2 visas are denied because the investment was not substantial. Unlike the EB-5 visa, which specifies a dollar amount requirement, there is no set dollar amount for the E-2 visa. A guiding rule might be whatever is sufficient to take a business and make it operational and profitable.
- You must show you have enough money to get the business off the ground and pay for all its expenses until the business can make a profit. Most business fail within the first year. You should have enough capital to sustain the business operations for the first year so that you can take the business off the ground.
8. The purpose of the business should not be solely to earn a living for your family. It must make a significant contribution to the community by expanding job opportunities for U.S. workers.
- It’s really important to demonstrate to immigration that you are creating jobs for other people besides just making a living for your family.
9. If pooling with others, the investor applying for the E-2 visa must have the ability to control at least 51% of the business. The investor must have executive or supervisory control.
- It’s okay to have others go in with you but you must be the majority owner. You can do this by establishing an entity like a corporation or a limited liability company that shows the breakdown percentages of ownership.
10. The investor has the burden of establishing to immigration that he has the essential skills in making the business operational.
- For example, create a resume that highlights previous experience in operating a similar business or accounting records from any similar business you might have been involved in, that would meet this requirement.
The Procedure for Obtaining the Investment Visa:
1. If in the United States already on a B-1/B-2 Visa, one can make preparations for starting the business and then file the I-129 Petition with USCIS for a change of status to an E-2.
2. If outside of the United States, one can file for an E-2 visa directly with the U.S. consulate designated for accepting E-2 filings. One would file the DS-160, with Supplement form DS-156E.
3. In either case, the requirements are the same.