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E-2 Visa – What you need to know in order to qualify

E-2 Visa Generally:

The E-2 visa allows a foreign national from certain treaty countries admittance to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of a qualifying organization or of the individual themselves may also qualify for E-2 visas. If the foreign national is already in the United States in lawful nonimmigrant status, that person may file Form I-129 to request a change of status to E-2 classification. Visas are typically issued for up to five years and may be extended in two year increments, with no limit to the number of extensions granted to the treaty investor (treaty investors must maintain an intention to depart the United States upon expiration). To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested or must be in the process of investing a substantial amount of capital in a U.S. business
  • Enter into the United States solely to develop and direct the business enterprise (either through 50% ownership or operational control such as a management)

Definitions:

Investment. Investment is placing capital, monies, or other assets in a business with the intent of making a profit subject to risk of loss (partial or whole loss) if the business enterprise fails. This means that an investor has to be “on the hook” if the business fails and cannot merely “invest” capital without any appreciable risk. A business or enterprise must be a legally operating business within a jurisdiction (such as a properly organized corporation in a state) which produces services or goods for profit. Additionally, capital that has been invested or in the process of being invested must be irrevocably committed to the business.

Substantial Capital. Substantial capital is not  a “magic dollar amount.” Generally, it must be a large proportion to the total cost of either purchasing an established business or creating the type of business under consideration, sufficient to ensure the treaty investor’s financial commitment to the successful operation of the business, and enough to support the likelihood of successfully starting or operating the business. For example, if a foreign national intended on investing in a startup company that made plush toys, that person must invest enough to start the business (a majority of the capital) and enough to ensure that the business would likely succeed. This means that the person applying for an E-2 visa cannot invest a nominal amount of money for “show” and must actually invest enough to allow the business to operate.

Family members of E-2 Visa Holders:

Family of E-2 visa holders may apply under the investor’s visa and accompany him or her during the duration of his/her visa. Family includes an investor’s spouse and unmarried children under the age of 21. The nationalities of the spouse and children do not need to be the same as the treaty investor.

Immigration and particularly international trade is a complex area of law. However attorney Natalie D. Hall has extensive experience in immigration. An E-2 investor visa has various requirements and investing the “right amount” in a U.S. business can be challenging. Having an experienced attorney guide you through the process is essential and we would be happy to discuss your situation and business plans. Contact us today for a consultation.

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