The E2 Visa: An Entrepreneur’s Guide to Doing Business in the U.S.

If you want to invest in the United States, the E2 visa may be the perfect option. Here we will cover what an E2 visa is, its benefits, eligibility requirements, application procedure, documentation, and other important information to help you make an informed decision. We will also go over how an immigration attorney can assist you throughout the legal process. If you have an immediate need, please reach out to our firm as Hans Burgos is one of the top 10 immigration lawyers in Miami.

What Is an E2 Visa?

An E2 Visa is a nonimmigrant visa category that allows nationals of a treaty country to live and work/invest in the United States. Three different types of individuals can apply for the E-Visa:

• Treaty investor
• Treaty employees
• Dependents

Treaty Investors

A treaty investor is a national from one of the listed treaty countries that invest in a United States business. The government will issue them the E2 visa to come to the country and direct and control the business they invest in. Upon entering the United States, the Investor receives a two-year work authorization.

Treaty Employees

In cases where an employee applies for the E2 visa, they must be nationals of the same country as the business owner or the company’s Investor. The employee must have skills that make them essential to the business, which means that they must either be in a managerial position, have a supervisory role, or is a worker with critical skills required by the company.

If the employee applying for an E2 visa is in a supervisory or managerial position, they must take control of the business and its employees. Their role as supervisory must be their primary function, with the supervisor hiring and training higher-level employees for the business.

Workers with special skills must demonstrate their expertise and knowledge in the specialized area by having a degree. They must also show that they have relevant training and explain the uniqueness of their skills before they can receive an E2 visa.

Dependents

The spouse or/and children under 21 can also apply for the E2 visa as the E-2 Investor or employee dependents. The main requirement of the E-2 dependent visa is that the dependents must prove their familial relationship with the E-2 Investor or the employee. They may receive their visa after the E-2 Investor or the employee receives their E-2 visa.

When the spouse enters the United States, they may be able to find work by applying for work authorization from the United States Citizenship and Immigration Service (USCIS). Upon granting the work authorization, the spouse can work anywhere in the United States for one year and apply for renewals as long as their E2 visa is valid. We can assist you in obtaining your spouse’s Employment Authorization once you enter the United States with the E-2 visa.

Children cannot work in the United States under the E2 visa but can seek education without the F-1 Visa. Upon turning 21, the children are no longer eligible for the E2 visa, and they must seek other visa options to remain in the United States. We will assist you in determining other visa options for your children 21 years or older.

What Are the Benefits of the E2 Visa?

The E2 visa has many advantages for applicants from treaty countries, some of which include the following:

• No restrictions on travel: The E2 visa allows the visa holder to travel freely within and outside the United States. There are no restrictions on the number of entries and exits.
• Unlimited renewals: The E2 visa holder does not face any restrictions when renewing their visa. They can renew their E2 visa as many times as they want, unlike other categories of visas. The E-2 status remains for two years, after which they can request an extension without restrictions.
• The spouse can work: As an E2 visa holder, the spouse can apply for work authorization and work anywhere in the United States to make money.
• Children can study: Children holding an E2 visa can apply to schools or educational institutions to receive an education without applying for a separate student visa. The education in a public school until grades K-12 is entirely free, and children can take advantage of lower in-state tuition fees for universities.
• Sponsor employees: An E-2 investor, once you’ve established a running business, you can sponsor specialized employees from your home country to come to the United States and work for you.
• USCIS or Consular processing: Unlike other visa categories, the Investor can process his E -2 visa in the U.S. through a Change of Status (COS) or directly with the U.S. consulate. We will assist you in determining the best option for you and your family.

Eligibility for an E-2 Treaty Investor Visa

The Foreign Affairs Manual (FAM) mentions the following requirements to become eligible for the E-2 treaty investor visa.

You Must “Direct” And “Control” The Business

The best way to meet the “direct and control” requirement is to own at least 50% of a new or an existing business, but there are alternatives that you can consider.

Under the guidelines mentioned in FAM, you can own less than 50% of an existing business if the other business owners share the same nationality as yours. If this is your case, we will assist you in preparing documentation that clearly explains and meets this criterion.

Individuals applying as specialized skill workers must have the same nationality as an E-2 qualifying business.

You Must Be an E-2 Treaty Country National

Another critical requirement for eligibility is to be a national of one of the E-2 qualifying treaty countries. The United States Department of State has a list of qualifying countries from which citizens are eligible for the E2 visa. Depending on your nationality, you may have additional requirements to fulfill. We can walk you through these eligibility requirements.

You Have to Make an Investment That Is a Substantial Amount

According to the (9 FAM 402.9-6(D)) treaty investor must make a “substantial” investment in an existing business or a new business. By “substantial investment,” it means the investment should be enough to successfully run the business’s operations.

For example, an initial $100,000 investment in a coffee shop may be a substantial amount to run the business but is an unlikely significant investment to operate larger enterprises. Every business is different and has different investment requirements to run operations successfully.

Although no strict investment requirement is mentioned in the FAM, the U.S. State Department guides its officers to look for an investment of $100,000 or upwards. A general rule of thumb is to have $100,000 invested, but in some cases, the officers may consider a lower investment a substantial amount. It all depends on the type of business and the factors that make it likely to be commercially successful.

It is important to note that the investment does not necessarily have to be cash. Moving inventory to the U.S. business or leveraging intellectual property may also count towards the investment criteria of an E2 visa.

You Must Show That You’ve Committed the Investment

The E2 visa applicant has to demonstrate that it has committed an investment toward a business, and the investment must be a real operating enterprise.

It is important to note that funds in a business bank account without a real commitment do not count for E2 purposes.

Your Investment Should Not Fall under Marginal Investment

The purpose of an E2 visa is to have an investment in the United States that makes a significant economic contribution. According to CFR Section 214.2(e), “marginal investment” is an investment that only provides a minimal living for the Investor. Under the E-2 requirements, the investment can not be marginal.

The business qualifying for an E2 visa must have the present or future capacity to make a significant economic impact or more than enough income to exceed minimal living requirements.

One way to prove that your investment is not marginal is to hire workers to show that you’re making a significant economic impact with your money. In theory, a business plan that suggests employing workers in the future may fulfill the requirement, but it can also raise some skepticism at the U.S. Consulate.

The E-2 Qualifying Business Must Be “For Profit”

Charities and other non-profit entities do not qualify as E-2 businesses, and you must invest in a business that operates for profit. Passive investments, such as stock market or real estate investments, do not make you eligible for an E2 visa.

The Funding Source Should Be Lawful

Unlike applicants applying for the EB-5 investor visa, who have to provide answers to lots of questions regarding funding sources, the E2 visa application is a bit relaxed on this. However, the applicant needs to demonstrate that their funding source is lawful.

Some examples of lawful funding include income from employment, gifts or inheritance, the sale of assets, or an unsecured or secured loan backed by personal assets. Loans secured against the assets of the investment enterprise are not allowed.

The Applicant Should Agree to Depart the Us after Completing the Work

When submitting an E2 visa application at the U.S. Consulate, the applicant must also file a statement that provides the U.S. State Department with a guarantee that they will leave the United States once their work is complete.

A simple letter of intent to depart the U.S. is enough to grant an E2 visa. However, the officers at the U.S. Consulate will decide this case by case.

E2 Visa Application Procedure

There are only two ways you can apply for the E2 visa, and these include applying from within the United States and applying from outside the U.S.

E2 Visa Application Procedure from Within the U.S.

People residing in the United States legally on another visa can change their status by applying for an E2 visa from within the country. Applicants filing from within the U.S. must file a form I-129, Petition for Nonimmigrant Workers, with the USCIS.

Besides filing and submitting the form, you must provide an investment/business plan, proof of nationality, investment, and your intent to leave the country once you complete the work. We work with various providers that specialize in preparing business plans for E-2 Investments.

Individual investors must file the form I-129 themselves, while an employee working for a company must request their employer to file the form on their behalf.

E-2 Visa Application Procedure from Outside the U.S.

Individuals looking to apply for an E2 visa at the U.S. Embassy in the country of their residence must meet specific steps. We recommend you use our legal services to assist you in preparing your E-2 visa application. In essence, an E-2 applicant must:

• File form DS-160 (online nonimmigrant visa application).
• Pay for the E2 visa application fee.
• Schedule an interview.
• Prepare all the documents required.
• Attend the interview.

Types of Documents You Must Prepare Before Going for the Interview

Preparing the documents is the most critical part of your E2 visa application, and you must ensure that you do this correctly, as it could make or break your case.

• Fill out the appropriate forms
• Valid passport
• Two photographs (51 x 51 mm) with white backgrounds taken in the last six months
• Receipt of E2 visa application payment
• Proof of intent to leave (a signed statement is enough for an E2 visa application)
• Proof of investment in a real business (financial statements, tax returns, bank statements, customer or employee contracts, etc.)
• Proof that the investment is substantial (business plan, bank statements, license, or business registration documents)

Depending on your status, there may be other treaty investor documents that you would have to provide. Click here to learn about the documents you must assemble into a package before applying for an E2 visa.

List of Treaty Countries Whose Nationals Are Eligible for the E-2 Visa

The following is a list of treaty countries from where nationals can apply for an E2 visa:

• New Zealand
• Albania
• Argentina
• Armenia
• Australia
• Austria
• Azerbaijan
• Bahrain
• Bangladesh
• Belgium
• Bolivia
• Bosnia and Herzegovina
• Bulgaria
• Cameroon
• Canada
• Chile
• China (Taiwan)
• Colombia
• Congo (Brazzaville)
• Congo (Kinshasa)
• Costa Rica
• Croatia
• Czech Republic
• Denmark
• Ecuador
• Egypt
• Estonia
• Ethiopia
• Finland
• France
• Georgia
• Germany
• Grenada
• Honduras
• Ireland
• Israel
• Italy
• Jamaica
• Japan
• Jordan
• Kazakhstan
• Korea (South)
• Kosovo
• Kyrgyzstan
• Latvia
• Liberia
• Lithuania
• Luxembourg
• Macedonia
• Mexico
• Moldova
• Mongolia
• Montenegro
• Morocco
• Netherlands
• Norway
• Oman
• Pakistan
• Panama
• Paraguay
• Philippines
• Poland
• Romania
• Senegal
• Serbia
• Singapore
• Slovak Republic
• Slovenia
• Spain
• Sri Lanka
• Suriname
• Sweden
• Switzerland
• Thailand
• Togo
• Trinidad & Tobago
• Tunisia
• Turkey
• Ukraine
• United Kingdom
• Yugoslavia

Can You Apply for a Green Card as an E-2 Visa Holder?

One of the critical requirements of an E2 visa is the intent to leave once you’ve completed the work. With this requirement in place, it is difficult for you to transition to or apply for a Green Card with an E2 visa status.

However, E2 visa holders can get a Green Card in four indirect ways, including the following.

Apply for an EB-5 Investor Visa

Considered a U.S. version of a Golden Visa, the EB-5 Investor Visa requires the Investor to invest at least $800,000 in a U.S. business and create a minimum of 10 jobs (Targeted Employment Area).

There are many benefits of the EB-5 Investor Visa, such as including your dependents in your application, getting access to American healthcare, and many more. However, the greatest benefit of the EB-5 Investor Visa is that you and your dependents get a Green Card.

Self-petition for EB-1 Visa

The EB-1 Visa is the first category of employment-based immigration visas, providing people with exceptional abilities in different fields of academia and work an opportunity to immigrate to the U.S. permanently.

Apply for an Immediate Relative Visa

If you have a close family member residing in the United States, applying for a Green Card is much easier. Under the Immediate Relative Visa, which includes spouse, children, and parents, and the Family Based Immigrant Visa, which includes spouse, children, parents, and siblings, you can apply for a Green Card.

Change Status to Nonimmigrant Dual Intent Work Visa

You can change your E2 visa to a dual intent work visa that can open pathways to getting a Green Card. This nonimmigrant visa has many categories, including H-1B, L-1, and O-1.

Start by finding an employer for work willing to sponsor your visa, and once you get the new visa approved, you are one step closer to applying for a Green Card.

Drafting a Business Plan for an E-2 Visa: All You Need to Know

Having a solid business plan is critical to your E2 visa application. It is crucial to have a business plan when investing in a smaller business with lower turnover, employees, or a new business to demonstrate a growth strategy.

A business plan is a way for you to explain how you’re going to use your investment to the immigration officer so that they can decide on whether or not to grant you the E2 visa.

You must take the time and effort to devise a strong business plan to convince the officer to issue you an E2 visa. To help you draft a solid business plan and improve your chances of success, you should consult with an experienced immigration attorney. We can help you choose a specialist in preparing E-2 Business Plans.

The following are some common mistakes applicants make in their business plan, jeopardizing their application:

• Failure to take into consideration current and future immigration strategy
• Failure to comply with immigration laws and regulations
• Failure to have realistic and consistent assumptions
• Failure to properly reflect your strategy, as mentioned in other documentation
• Having inconsistencies in the financial model of your business plan that do not comply with immigration laws and regulations.

Do You Need an Attorney Specializing in Immigration Law to Apply for an E-2 Visa?

You do not need an attorney specializing in immigration law to apply for an E2 visa, as you can do it yourself.

However, having an experienced immigration attorney who is a member of the American Immigration Lawyers Association on your side means a stress-free visa process and an increased chance of getting your visa approved.

Why You Should Consider Hiring an Experienced E2 Visa Attorney

There are many reasons why you may want to consider hiring an experienced and reputable immigration attorney, some of which include the following.

Case Evaluation from Experts

The first thing you need to know before applying for an E2 visa is whether you qualify for it and what are your best options. An experienced E2 visa attorney can help assess your case and determine the steps you should take to ensure a successful application.

Lawyers that provide immigration services set realistic expectations and devise a strategy according to the circumstances of the case.

Receive Legal Guidance

Immigration attorneys are legal advisors who assist clients by properly assessing their cases and avoiding common mistakes that could jeopardize their E2 visa application.

The immigration process can be daunting, but with an experienced E2 visa attorney, you’re getting expert legal advice that you can trust.

Compliance with Requirements

When applying for the E2 Visa, complying with the documentary requirements is essential. The documents you prepare must be tidy, authentic, and packaged in a way that is easily readable by an officer. Complicated packages can lead to extended times, and any mistake during the preparation of the document or missing a document may lead to visa denial.

A skilled E2 visa attorney knows the documentary requirements and can assist in preparing your documents in a way that complies with all rules and regulations to increase your chances of receiving an E2 visa.

Application Review

Before filing for an E2 Visa, the attorney will adequately review your application to identify any errors or inconsistencies, which is critical for a successful application. The experience and knowledge of immigration attorneys allow them to quickly spot inconsistencies, errors, or any other element that could adversely impact the application and take immediate action to rectify such issues.

Updated with Immigration Laws

Immigration laws are susceptible to changes, and if you’re not current on the latest developments, you’ll risk your E2 visa application. An experienced attorney has access to up-to-date information, and they can provide you with the guidance you need.

Avoid Worst-case Scenarios

When applying for E2 Visa, there are many firms offering immigration services, and some of them may be fraudulent firms looking to make money. These types of businesses may issue fraudulent letters or documents to improve your application.

Whether you’re aware of the fraudulent services to expedite the immigration process or are unknown to them, committing fraud is a crime, and if found out, you may face hefty fines and deportation.

Frequently Asked Questions About E-2 Visa

How Long Can I Stay in the U.S. with an E-2 Visa?

The E-2 visa offers 2 to 5 years of temporary residency, depending on the treaty country program. The E-2 can renew indefinitely if the business continues operating, creates employment, and is not “marginal.”

Is There a Cap on the E-2 Visa Quota?

Unlike different categories of the EB-5 Visa, which has a cap of 3,000 visas annually, making it challenging for the applicant due to tough competition, the E2 visa does not have any quotas.

How Much Money Do I Need to Invest for an E-2 Visa?

According to the guidelines provided by FAM, there is no minimum investment. However, the investment should be substantial and not marginal. The amount of investment should be sufficient to run a business. For example, the investment amount to run a bakery’s operations is much lower than that to operate a brewery or other larger enterprises.

Is It Necessary for Investors to Build a Business?

Although building a business from scratch can also get you an E-2 visa, it is not the only way to fulfill the investment requirement, such as investing in an existing business or acquiring a business or franchise.

Would I Need to Create Jobs with an E-2 Visa?

Unlike the EB-5 visa, which requires investors to provide at least ten jobs, there is no such job requirement for an E2 visa. However, providing at least two jobs with your investment is strongly recommended to build a strong visa application.

Can My Children Aged 22 and above Apply for E-2 Dependent Visa?

Unmarried children under 21 are dependents and can apply for the E-2 Dependent Visa. However, those above 21 do not fall under dependent status and cannot apply for an E-2 Dependent Visa.

What Are the Tax Implications of an E-2 Visa?

When individuals with an E2 visa stay in the United States for six months, they wonder how much tax they must pay. The tax implications of an E-2 visa depend on the individual’s circumstances and specific tax situation. You must seek tax-related information from a Tax and/or Accounting Professional.

Typically, E2 visa holders must pay tax on the income they generate in the United States, which means they must register with the Internal Revenue Service (IRS) and file their taxes annually. However, depending on their country of origin, they may qualify for tax benefits and exemptions.

As a non-resident with no Green Card, E2 visa holders only have to pay taxes on income generated in the U.S. unless they qualify for the Substantial Presence Test, in which case, they will have to pay taxes on all worldwide income.

Is It Possible to Lower My Taxes as an E-2 Visa Holder?

You can apply different international tax strategies to reduce your tax liability while residing in the United States. It is important to note that taking advantage of the tax benefits offered is not illegal or unethical. We recommend that you work with a Tax and/or Accounting Professional.

To learn more about reducing your tax liability, speak to an experienced tax consultant and discuss your case with them.

What Are the Latest Visa Appointment Wait Times?

The consular processing times for E2 visas are much quicker than other types of visas as the E-2 is directly processed at the U.S. Embassy or the Consulate without needing the approval of the USCIS. The waiting times for a visa interview appointment vary from one country to another.

E-2 processing times have increased from the standard 4-6 weeks to over six months. We can assist you in finding other options that are more suitable for you and your family when available.

I Don’t Have Cash. What Are Some Ways I Can Meet the Investment Requirement?

There is a common misconception among potential applicants that they must have the cash to apply for the E-2 visa when that is not the case. The following types of investment can help fulfill the E2 requirements:

• Inventory stock
• Patents
• Trademarks
• Tangible assets
• Money in an escrow account

What Happens If My Business Fails While on an E-2 Visa?

A failing business is a risk that haunts all E2 visa holders. You receive your E2 visa because you will be operating and growing the business. If your business fails, you no longer maintain the qualifications of an E2 Visa, lose your eligibility, and may have to leave the country.

However, there are certain exceptions to it. If your business fails due to circumstances that are not under your control, such as natural disasters, you may be able to apply for an extension.

Can I Bring My Employees to the U.S. on an E-2 Visa?

You may be able to bring your employees from the country of your origin if you’re an E2 visa holder actively running a business. However, the employees you hire must have extraordinary abilities that you believe are crucial for your business. To satisfy this requirement, you must show that there are no qualified U.S. workers to fill the position.

What Happens If the Officer Denies My E-2 Visa?

If you get your E2 visa denied, you must read the letter to understand why the immigration officer denied your application to help you determine your next steps. You may be able to reapply for the visa by addressing the issues raised by the immigration officer.

Legal Representation

Sometimes, E2 Visa applicants may have to take matters to court. An experienced E2 attorney can provide the legal representation you need to protect your rights and interests.

Practical Recommendations

As you can see, many different questions may arise when applying for an E2 visa, such as:

• Can your spouse or children accompany you?
• Can you work in the U.S.?
• Can your spouse work, and what is the process of work authorization?

An experienced immigration attorney can help answer all those questions and provide the best recommendation.

Smoother Application

Preparing an E2 visa application can be stressful, and you need guidance from legal experts to smooth out the process and help you strategize your application. You cannot put a price tag on peace of mind, and working with legal professionals can help ease your worries.

Let us help you with your E-2 Visa Application. Contact us at [email protected] to discuss your case and determine the best option for you.