E-2 Visa for Investors
By Reuben S. Seguritan
February 11, 2009
A viable option for non-immigrants seeking to come to the U.S. to invest and operate a business enterprise is the E-2 visa.
As a basic requirement, the E-2 visa applicant must be a national of a country with a treaty of commerce or navigation with the U.S.
For this purpose, it is not the place of incorporation of the business that determines eligibility but the nationality of the individual owners of the business applying for the E-2 visa. If more than 50% of the business is owned by individuals from a state with a treaty with the U.S., they can apply for E2 visa to establish and operate this business in the U.S.
Applicants in this category must have extensive documentation detailing the business plan, the amount of investment, the nature of the capital, the jobs to be created by the enterprise, and how the proposed enterprise will benefit the U.S.
The applicant must seek to enter the U.S. to develop and direct the operations of the enterprise in which he/she has invested. He/she must have the ability to do so by showing ownership of at least 50% of the business or have operational control in the company.
The capital investment needs to be substantial. Investments as defined by the regulations must pertain to funds or assets placed at the disposal of the business with the objective of making a profit and subject to a risk of loss incident to the business operations.
While there is no specific dollar amount specified by immigration regulations, the investment must represent a significant proportion of the total value of the business enterprise or it must be sufficient to establish a profitable and viable business. In the past, some U.S. consulates have accepted investments in the amount of about $50,000.00 or more.
One of the issues affecting E-2 is how to document investments. The source of the funds need not be outside the U.S. nor is it required that the source must be from a treaty state. However, the capital must be in the possession or control of the treaty investor. It is possible that the source of funds may be from a gift or a loan to the E-2 applicant as long as it is attributable to him/her and that it is invested in the business enterprise to be set up in the U.S.
The capital invested must be irrevocably committed to the enterprise, meaning that the mere intent to invest in or holding the money in a bank account without commitment to the business will not suffice to meet the investment requirement.
To show commitment, the applicant may show, for instance, contracts for purchase and sale of a property or business in the name of the enterprise or an escrow for the purchase conditioned on the approval of the E-2.
Payments for purchases, leases or rents of equipment or machinery for the business may also be shown as qualifying investments.
The business enterprise must be bona fide or a real and active commercial undertaking and must meet the legal requirements for doing business in the U.S. It is not just speculative or a paper organization just incorporated without business activity.
The maximum validity of E-2 treaty investor visa depends on reciprocity with the alien’s country although it is usually five years. The initial period of admission is not more than two years.
Immediate family members, including spouse and unmarried children under 21 of the principal E-2 treaty investor holder, may be admitted in the U.S. on a derivative status.