Written by attorney Carl Michael Shusterman

How Can I Qualify for an E-2 Visa?

“For all its current economic woes, America remains a beacon of entrepreneurialism. Between 1996 and 2004 it created an average of 550,000 small businesses every month. Many of those small businesses rapidly grew big. The world’s largest company, Wal-Mart, was founded in 1962 and did not go public until a decade later; multi-million dollar companies such as Google and Facebook barely existed a decade ago."

-The Economist, March 12, 2009

The E- 2 visa is a great option for those with an entrepreneurial spirit who would like to come to the United States in order to start a business. It is only available for those from nations with which the U.S. maintains a treaty of commerce and navigation. The applicant should be coming to the U.S. to develop and direct the operations of a business in which they have invested or are currently investing.

In order to obtain an E-2 visa, the applicant must be coming to the United States solely to develop and direct the enterprise. There are three primary concerns:

First, the applicant must have the necessary funds in his control, should have received the funds by legitimate means, and the funds should be irrevocably committed to the business enterprise. Mere intent to invest, or just having a bank account with such funds available is not good enough. In order to prove irrevocability, the applicant must provide documentary evidence such as proof of company set-up (corporate incorporation documentation), proof of leasing premises, asset purchase agreements, equipment purchase agreement, etc.

Second, the E-2 visa applicant must make a “substantial" investment in the planned business. There is no set dollar amount that will be considered “substantial". Each consulate may have an informal minimum investment threshold. They look at the amount of the qualifying funds invested; and the cost of purchasing an established business or, if a newly created business, the cost of establishing such a business.

Potential applicants should keep in mind that an investment less than $100,000 will be subject to a higher level of scrutiny. This is not to say that $100,000 is the “magic" amount that will get the visa approved. The purpose of the substantiality requirement is to ensure that that business is not speculative, and that it will be viable.

Finally, the applicant should ensure that the funds invested in the business enterprise are “at risk". That is, if for any reason the enterprise fails, the investor will lose his money, not some third party investors. For this purpose, any investment which is secured against the assets of the enterprise will not count towards the amount invested. The investor can get a loan by securing it against his or her own personal assets, but not against the assets of the business.

Another important factor that is considered by the authorities is the business is “marginal". A marginal business is an enterprise that does not have a present or future capacity to generate more than enough income to provide a living for the treaty investor and his or her family. The applicant does not have to prove that the business will be profitable in the short-term, but they must prove adequate financing to tide over short-term hiccups and sustain the business over a period of time. The business should project a significant economic contribution for the future (i.e create jobs for Americans). To this end, it is advisable to provide a 5-year business plan along with the petition and application package.

Unlike the H and L visas, foreign entrepreneurs can directly seek an E-2 visa from the U.S. Embassy or Consulate in their country without any prior approval from the USCIS. If the foreign national is already in the U.S. in another temporary visa status, he may seek a change of status to E-2. An initial E-2 visa is valid for 2 years, and can be extended for an indefinite period as long as the investor continues to manage the business. The E-2 visaholder’s dependent spouse is entitled to obtain employment authorization.

Do you have a business idea you want to try in the U.S.? Are you from one of our E-2 treaty nations? If so, contact an immigration attorney experienced in obtaining E-2 visas to see if you qualify.

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