E (Investor) Visas
The E-1 treaty trader visa is a nonimmigrant visa which allows foreign nationals of a treaty nation to enter into the U.S. and carry out substantial trade. A treaty trader belongs to a nation that maintains a treaty of commerce and navigation or a bilateral agreement with the U.S.
E-2 investor visas, like E-1s, are also business visas based upon treaties of friendship, commerce and navigation or other arrangements between the U.S. and a country of which the investor is a national. The E-2 visa is for entrepreneurs from treaty countries investing substantially in a U.S. enterprise. An E-2 visa is considered a non-immigrant visa. However, once an investor is able to qualify and enter into the U.S. in this category, they may be able to look for other opportunities and to apply for green cards and eventually citizenship. We work with a large number of E-2 applications.
The U.S. does not set a specific investment amount of funds to be invested; rather it vaguely states that a business owner must invest a “substantial amount of capital” that generates “more than enough income to provide a minimal living for the treaty investor and his or her family.” We've worked with enough of these cases over time to know what will work and what won't with an E-2 application.
An EB-5 visa can directly get an applicant a green card through investment – to learn more about EB-5 visas, PRESS HERE.
Eligibility
E-2 Visa holders must have invested or be actively in the process of investing.
The E-2 investor must show that he or she has either made a substantial investment or is actively in the process of making a substantial investment in the enterprise. Where an enterprise is in the process of formation, it must be show that the funds have committed and are at risk. The funds must be irrevocably committed to the business.
A qualifying investment must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. An investment is the treaty investor's placing of capital, including funds and other assets at risk in the commercial sense with the objective of generating a profit.
E-2 visa holders must have a controlling interest in the enterprise.
An interest of less than 50 percent usually will mean that the E-2 visa applicant does not have the requisite control, particularly in smaller enterprises. However, an equal share of the investment in a joint venture or equal partnership of two partners generally does give controlling interest, if the joint venture and partner each retain full management rights and responsibilities.
The E-2 investment must be substantial
No set dollar amount constitutes a minimum amount of investment to be considered “substantial” for E-2 purposes. This requirement is met by satisfying the “proportionality test.” The test is a comparison between two figures: the amount of qualifying funds invested and the fair market value of the established business, or, if a newly created business, the cost of establishing such a business.
The E-2 enterprise must be more than marginal
The E-2 visa applicant must not be investing in a marginal enterprise solely for the purpose of earning a living. An E-2 visa applicant is not entitled to E-2 classification if the investment, even if substantial, will return only enough income to provide a living for the applicant and family. The enterprise must 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 or the capacity to make a significant economic contribution.
Nonimmigrant Intent
An applicant for an E-2 visa need not establish intent to proceed to the U.S. for a specific period of time. Although an initial two-year period of admission is granted to persons coming to the U.S., this period can be extended indefinitely. Extensions of temporary stay, however, may be granted in increments of not more that two years.
Process
E-2 visa applications abroad are made at U.S. consular posts, usually by submitting a questionnaire, supporting documentation, and other required forms.
In the United States, nonimmigrant foreign nationals can change status to E-2 or extend their status by submitting form I-129 with Supplement E and other documentation.
E-2 visa petitions filed in the United States are eligible for Premium Processing, which results in the Department of Homeland Security making a decision on the application in 15 days.
Period of Admission
The regulations allow for a two-year period for an initial admission and an unlimited number of two-year extensions in the E nonimmigrant classification. If the foreign national does not leave the U.S. during the two-year period, he or she must file a request for an extension before the expiration of the time period granted for the initial admission.
Traveling outside of the U.S. entitles the E nonimmigrant to automatic readmission for two years. The only restriction on readmission is the period of validity for the underlying E visa. E visas are generally issued for a period of four to five years, depending on reciprocity of the country of nationality.
Spouse & Children
There is no derivative E visa category. Therefore, the spouses and children (unmarried and under 21) of a principal E nonimmigrant are admitted in the same category as the principal.
E spouses are eligible to apply for work authorization. E children do not have authorization to work in the U.S.