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Posted by attorney Fernando Perez

The Treaty Investor or E-2 visa is a nonimmigrant visa category available to nationals of countries with which the United States has a treaty or bilateral agreement who make a qualifying investment in the United States. The E-2 does not make the investor a lawful permanent resident with a "green card", but it does allow an investor to remain indefinitely in the United States as long as a qualifying investment exists. Consequently, this visa category is the next best thing to becoming a resident and is the visa of choice for persons who do not qualify for residency, for persons who only want the freedom to come and go from the United States with ease, or for persons who would like to retire in the United States.

IS ANY FOREIGN NATIONAL ELIGIBLE? No. As previously mentioned, the visa is only available to nationals of countries with which the United States has a treaty or bilateral agreement which makes the visa available. An important point here is that, with the exception of citizens from the United Kingdom, as long as an investor is considered a national of a qualifying country the regulations do not require that the investor reside in that country.

CAN A SINGLE INVESTMENT BE USED BY MORE THAN ONE FOREIGN NATIONAL? Yes, but this will be limited to two (2) foreign nationals. The limitation arises from the fact that the investor must be able to show control of the investment. This has been interpreted to mean ownership of at least 50% of the enterprise. As such, a single investment would be limited to two 50/50 foreign owners. As to evidence of control, this is resolved by structuring the enterprise so that each foreign investor is able to exercise at least negative control over the enterprise. In addition to owning at least 50% of the stock of a corporation, it is recommended that the investor be named a director and officer of the corporation.

HOW MUCH MUST BE INVESTED? Under the current guidelines there is no minimum amount which must be invested. What must be shown is that the amount invested is at least the amount necessary to adequately fund the intended investment. As such, the nature of the investment will usually determine how much must be invested. Investments made through an arms length purchase of an existing business are easier to qualify since the purchase price will determine the fair market value of the enterprise. Although there is no minimum amount that must be invested, the smaller the investment the greater the amount of scrutiny one can expect at the time application is made for the status or visa.

WHAT ABOUT THE INVESTOR'S FAMILY? An investor's immediate family (spouse and unmarried children under the age of 21) will be able to accompany the investor to the United States. The investor and all of the investor's family members will be automatically authorized to attend school in the United States. The investor's spouse can also apply for employment authorization. While the investor will only be permitted to work for the investment enterprise, the investor's spouse, once he/she obtains employment authorization, can work anywhere.

HOW MUCH TIME MUST AN INVESTOR DEVOTE TO THE MANAGEMENT OF THE INVESTMENT? There is no requirement that an investor spend a certain amount of time managing their investment. Some investments, like a manufacturing facility or a restaurant, may require a good deal of the investor's time. Other investments, like the management of rental properties require much less of an investor's time. This is another reason why Treaty Investor status is popular with retirees, they can leave you with plenty of time for golf and fishing.

ARE THERE ANY OTHER REQUIREMENTS? Yes, these deal with the estimated profitability of the investment, or the number of employees the investment will require. Although this requirement is usually not difficult to satisfy, it is best to determine that it can be satisfied prior to making the investment. Quite often the investment can be made but must be restructured to accommodate this requirement.

Essentially, the investor will need to show that the investment is not designed to merely provide a living income. This is done in one of two ways: (1) by providing information showing that the investment will, within five years, return net profits in excess of the investor's living income requirements; or (2) by showing that the investment, even if only providing a living income, will within five years have a positive economic impact on the local economy. If an investment is going to take a few years to generate enough income to support the investor, it may be necessary for the investor to show that he/she has other income or assets they can use to live on until the investment becomes profitable.

HOW LONG DOES IT TAKE TO GET THE VISA OR STATUS? If the investor is legally in the United States it is possible to make application with the U.S. Citizenship and Immigration Services for a change of status to E-2. This change of status can be accomplished in as little as 15 calendar days. It application is going to made through a U.S. Consulate for issuance of a Treaty Investor or E-2 visa, how long it takes will depend on the particular United States Consulate. Most take about 30-45 days, but some can take up to 6-12 months. For this reason we recommend that whenever possible an investor obtain a change of status to E-2 and make application for the visa while they are in the United States in the E-2 status.

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