GUIDE

E2 Visa Guide: Everything You Need to Know

The E2 Visa is a valuable option for investors and entrepreneurs seeking to live and work in the United States. This guide provides a comprehensive overview of the E2 Visa, including its benefits, requirements, and key details.

1. What is the E2 Visa?

The E2 Visa is a non-immigrant visa for investors, entrepreneurs, and individuals interested in running a business in the United States. It allows you to:

• Start a new business in the U.S. or invest in an existing one.
• Live in the United States and work for the business you invest in.

Key Points:

• Substantial Investment: You must invest a significant amount of capital in a U.S. business and actively manage it.
• Country Eligibility: Available only to nationals of countries with an E2 treaty with the United States.
• Renewal: The E2 Visa can be renewed indefinitely as long as the business continues to meet visa requirements.

2. What are the Benefits of an E2 Visa?

The E2 Visa offers several advantages, including:

• Business Operation: You can start and work for a U.S. business.
• Family Benefits: Your spouse and unmarried children under 21 can also obtain E2 visas.
• Work Authorization: Your spouse can apply for work authorization in the U.S.
• Education: Your children can attend school in the U.S.
• Investment Flexibility: There is no set minimum investment amount; even investments as low as $50,000 may qualify.
• Visa Extension: No limit on the number of extensions; some holders stay for 15 years or more.
• Residency Requirement: Unlike other non-immigrant visas, maintaining a foreign residence is not required.

3. What are the E2 Visa Requirements?

To qualify for an E2 Visa, you must meet the following requirements:

1. Nationality: Be a national of a country with an E2 treaty with the U.S.
2. Intent to Depart: Have the intent to leave the U.S. once your E2 status ends.
3. Substantial Investment: Invest a substantial amount in a U.S. business.
4. Active Business: The business must be active and for-profit.
5. Non-Marginal Enterprise: The business cannot be considered marginal.
6. Business Management: Enter the U.S. to direct and develop the business.
7. Lawful Funds: Investment funds must be lawful.
8. Irrevocable Commitment: Investment must be at-risk and irrevocably committed to the business.

Detailed Breakdown:

i. Nationality

• You must be a national of a country with a qualifying E2 treaty with the U.S.
• Dual nationals can qualify if one of their nationalities is from a treaty country.
• Investments can be made by individuals or foreign businesses. If made by a foreign business, it must be at least 50% owned by nationals of the treaty country.

ii. Intent to Depart

• You must have the intention to leave the U.S. when your E2 status ends. A signed statement declaring this intent can suffice.

iii. Substantial Investment

• The investment amount is evaluated based on a proportionality test, comparing the investment amount to the total value of the business.
• No set minimum amount is required; investments as low as $50,000 may qualify, but larger investments strengthen the case.

iv. Active Business

• The business must engage in for-profit activities, such as selling products or services.
• Passive investments (e.g., real estate or stock market investments) do not qualify.

4. The E2 Business Must Not Be a Marginal Enterprise

To qualify for an E2 visa, the E2 business you invest in cannot be considered a marginal enterprise. A marginal enterprise is one that does not have the present or future capacity to generate enough income to provide more than a minimal living for you and your family.

Ways to Prove the Business is Not Marginal:

Evidence: Prove that the business has the capacity to make a significant economic contribution. This can be shown by demonstrating that the business either currently employs or will employ multiple workers, thereby contributing to the U.S. economy beyond just supporting the investor and their family.

Capacity to Provide Minimal Living:

Evidence: Show that the business has the present or future capacity to generate sufficient income to support you and your family. This can be demonstrated through detailed financial projections, business plans, or current financial performance.

Significant Economic Contribution:

Evidence: Prove that the business has the capacity to make a significant economic contribution. This can be shown by demonstrating that the business either currently employs or will employ multiple workers, thereby contributing to the U.S. economy beyond just supporting the investor and their family.

5. Directing and Developing the E2 Business

As an E2 investor, you must seek entry into the United States for the purpose of directing and developing your E2 business.

Requirements:

• Ownership: You must own at least 50% of the E2 business to meet this requirement.
• Operational Control: If you do not own at least 50%, you must demonstrate operational control. This can be done by holding a managerial position or having significant control over business decisions.

Additional Details:

Equal Ownership: If two parties each own 50% of the business, both must have full management rights and responsibilities to meet the directing and developing requirement.

Active Role: Passive investors do not qualify for the E2 Visa. You must be actively involved in directing and developing the business.

Foreign Business: If a foreign business entity is the E2 investor, it must show that it is directing and developing the U.S. business.

6. Source of Investment Funds

Requirement:

• Lawful Funds: Your investment funds must be obtained lawfully.

Acceptable Sources Include:

• Earnings from lawful employment.
• Income from the sale of a property.
• Gifts or inheritance.
• Proceeds from loans secured by personal assets (not the E2 business assets).

7. Investment Must Be Irrevocably Committed and At Risk

Requirement:

• At Risk: Your investment must be subject to partial or total loss. There should be no guarantee of getting any part of the funds back.

Irrevocably Committed:

• Active Investment: Funds must be actively invested in the E2 business, not just held in a bank account.
• Escrow Account: Investment funds can be placed in an escrow account with release conditional upon visa approval or status change.

Key Considerations:

Escrow Option: Placing funds in escrow with conditions related to visa approval is acceptable.

Actual Use: Funds should be spent on business operations and not just set aside.

At Risk

To meet the “at risk” requirement for the E2 visa, your investment funds must be exposed to potential loss. This means:

• Partial or Total Loss: There must be no guarantee that you will recover any part of the investment if the E2 business fails.
• Assessment: Evaluate how much money would be lost if the business were to fail. This ensures that the investment is genuinely at risk.

Investment is Irrevocably Committed

For your investment to be considered irrevocably committed, it must meet the following criteria:

• Investment Status: Your funds must either be already invested in the E2 business or in the process of being invested at the time of your visa application.
• Business Activities: You should be close to starting actual business activities to demonstrate your commitment to the success of the E2 business.

Key Points:

• Active Use: Merely showing intent to invest or keeping funds in a bank account without actual investment is not sufficient.
• Business Operating Account: A reasonable amount of funds held in a business operating account can count toward your investment capital.

Escrow Account Option:

• Conditional Release: You may place your investment funds in an escrow account, with the release conditions tied to the approval of your E2 visa or change of status. This can help meet the irrevocability requirement.

If you have any specific questions about how to meet these requirements for your E2 Visa, feel free to contact us.