E-2: Treaty Investor Visa

Treaty nationality. You must hold a passport of a treaty country. Your country of residence does not matter. At least 50 percent of the U.S. business must be owned by nationals of the same treaty country.

Substantial investment. The investment must be substantial in proportion to the total cost of the business. There is no fixed minimum amount.

Capital at risk. The funds must already be invested or irrevocably committed and subject to business risk. Funds sitting in a bank account do not qualify.

Active business. The business must produce goods or services. Passive investments, such as rental real estate, stocks, or undeveloped land, do not qualify.

Not marginal. The business must generate more than enough income to support you and your family. It must make a significant economic contribution, primarily by creating U.S. jobs, or have the capacity to do so within five years.

Your role. You must develop and direct the business. You need at least 50 percent ownership or operational control.

The lower the total cost of the business, the higher your share of that cost must be. No specific amount is required under the law. In practice, for small businesses, we typically see investments starting at about $100,000.

Qualifying investments include, for example, the purchase price of a business, equipment, inventory, lease deposits, and startup costs. A loan counts only if you are personally liable, for example a mortgage on your home abroad. A loan secured only by the assets of the U.S. business does not count.

You can start a new business, buy an existing business, or purchase a franchise.

An existing business already has revenue, customers, and employees. You must justify the purchase price and document the purchase. A new business requires a stronger business plan, since there is no operating history.

A franchise combines a proven concept with defined costs. In every case, a strong business plan is essential: realistic financial projections, a market analysis, and a five-year staffing plan.

Your spouse and unmarried children under 21 can accompany you to the United States in E-2 dependent status.

Your spouse may work in the United States for any employer. Your children may attend school and university but may not work. Their status ends at 21, when they need their own visa.

You can also bring employees to your U.S. business in E-2 status. They must have the same treaty nationality as the business and either work in an executive or supervisory position or have skills essential to the business.

Visa validity depends on your nationality. German nationals, for example, receive E-2 visas valid for up to five years, with multiple entries. Each admission allows a stay of up to two years.

You can renew the visa. The consulate will review whether the business is operating and whether you have implemented your business plan. If you close or sell the business, your E-2 status ends.

(1) Planning and Hiring an Immigration Attorney. You plan the business and hire an experienced immigration attorney. We review your structure and prepare a customized checklist to document the lawful source of your funds.

(2) Starting or Buying the Business and Investing. You form or acquire the U.S. business and invest the capital. You may travel to the United States as a visitor to prepare, for example to view locations, negotiate contracts, form the company, and open a bank account. You may not work in the business as a visitor.

(3) Visa Application. We submit your application, including the business plan, evidence of the investment, and the source of funds, to the U.S. consulate in your home country. You then attend an interview. If you are already in the United States with a valid visa (not ESTA or Visa Waiver), a change of status through USCIS may be possible in certain cases.

(4) Renewal. Before your visa expires, you apply to renew it and show that the business is operating and growing.

You must show that your investment funds come from a lawful source and trace the path of the funds from your account to the U.S. business. Typical sources include:

Ordinary income. Salary, self-employment income, distributions, and dividends. Evidence includes employment contracts, payroll records, tax returns, financial statements, and bank statements.

Capital gains. Proceeds from the sale of real estate, a business, or securities. Evidence includes purchase and sale agreements, tax records, and bank statements showing receipt of the proceeds.

Gifts and inheritances. Funds from family or friends with no obligation to repay, or assets received through an inheritance. Evidence includes the gift agreement, the will or certificate of inheritance, and documents showing how the donor acquired the funds.

Loans. A loan counts if you are personally liable. Evidence includes the loan agreement, the collateral, and documents showing how you acquired the collateral.

Although the E-2 visa does not lead directly to a Green Card, E-2 entrepreneurs often qualify for a Green Card through other paths. The most common are the EB-5 investor Green Card, the EB-1C Green Card for multinational executives and managers, and the EB-2 National Interest Waiver for entrepreneurs whose work benefits the United States.

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When we prepare your E-2 visa, we also discuss your long-term goals. If a Green Card is part of your plan, we structure your company, ownership, and role so that these paths remain open.

The most common reasons for E-2 denials are funds that are not yet invested, an unclear source of funds, a generic business plan, and an investment that is too small for the planned business. Careful planning avoids these problems.

Dominique Pando Bucci is a business and investor immigration attorney in Miami Beach, Florida. She advises clients in English, Spanish, and German.

Contact us for a consultation: info@pandobuccilaw.com

Disclaimer: Information on this website is not legal advice and is for informational purposes only. You must engage your own legal counsel for legal advice.