Find Out if You are Eligible for the E-2 Visa
The E-2 Treaty Investor Visa, better known as the E-2 Visa, allows applicants from around the world to pursue commercial investments anywhere in the United States. However, like most visa classifications, there is a myriad of requirements that must be met to qualify.
Are You a Member of an E-2 Visa Treaty Country?The E-2 Visa is available only to individuals whose country of origin has a treaty of commerce and navigation with the United States. You can see the list of eligible countries on our website here: www.jflawfirm.com/e-2-visa-countries. Treaty countries range from Albania to the United Kingdom, yet do not include major trading partners such as Brazil, China, or India.
Have You Invested, or Plan to Invest, a Substantial Amount of Capital in a Bona Fide U.S. EnterpriseThere is a lot to unpack with this requirement, as the U.S. Customs and Immigration Service (USCIS) uses terms like *investment* and *bona fide enterprise* in very particular ways.
An investment is defined as the placing of capital * including funds and/or financial assets * into a commercial activity with the goal of making a profit. You must demonstrate the funds are your own, or at least under your primary control, and that they were obtained legally. You must also have skin in the game, in that capital you invest must be at risk of at least a partial loss if the investment fails.
As for what constitutes a *substantial amount of capital,* the USCIS sets forth the following criteria:
- Substantial relative to the total cost of either purchasing an existing enterprise or founding a new one
- Sufficient to ensure the successful operation of the enterprise
- Large enough to increase the likelihood of successfully developing and directing the enterprise.
The lower the cost of the enterprise, the higher the investment must be in order to be considered substantial.
Finally, a *bona fide enterprise* is defined by the USCIS as a *real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.* Therefore, an entity that is not legally registered to do business in the U.S., is no longer operating, does not engage in any commercial activities, or is not-for-profit would be ineligible for investment via the E-2 Visa.
Are You Entering the U.S. Solely to Develop or Direct the Investment Enterprise?The E-2 Visa can only be granted for the purpose of allowing the applicant to develop or direct an enterprise in the U.S. This is demonstrated by either having at least 50 percent ownership of the enterprise or by possessing operational control through a prominent managerial or executive position.
Is the Enterprise Non-Marginal?If the investment enterprise is marginal * meaning its present or future capacity can only support the treaty investor and their family * it will not be eligible under the E-2 Visa. To qualify, you must invest in an enterprise that generates enough income to support additional personnel, or that can be shown to have that capacity within five years of obtaining the E-2 Visa.
Do You Intend to Eventually Leave the United States?The E-2 Visa is a nonimmigrant visa, meaning that applicants must maintain their intention to depart from the U.S. when their status expires or is terminated. The maximum initial stay is between two to five years, with extensions being granted in increments of up to two years. There is no maximum limit to the number of extensions, which are granted for as long as the E-2 Visa holder can demonstrate a need to remain to develop or direct the enterprise. Note that if you travel abroad, you will generally be granted an automatic two-year period of read missions upon your return to the country.