E2 Visa USA for Investors and Employees

E2 Visa USA for Investors and Employees

What investors & employees need to know about the E2 visa USA

The E2 visa is for entrepreneurs and business owners from Treaty countries who wish to make a substantial investment in an American business, either through setting up a new enterprise or by investing in an existing US entity. The E2 visa is potentially available to the investors and also to certain employees of the relevant business.

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E2 visa holders enjoy a number of benefits:

  • You have the right to legally work within the US business being invested in.
  • You may freely travel in and out of the USA while your visa remains valid.
  • You may be accompanied by your family members.
  • Your spouse may work in the USA, provided they hold an employment authorisation document.
  • Your children may attend school or other educational establishments in the USA without the need for a student visa.
  • You may live in the USA for a prolonged timeframe as there are no limitations on how many 2-year extensions you make.

What qualifies a business for E2 status?

The first step when considering the E2 visa is whether the business being invested in qualifies for E2 status.

Any investment venture suitable for an E2 visa must be an actual and operating business, defined as being “a real, active commercial or entrepreneurial undertaking which produces services or goods for profit”.

In addition to this, the business is required to make a positive contribution on the US economy, by way of creating qualifying jobs for US citizens.

Eligibility for an E2 Visa USA

To apply for an E2 visa, applicants must meet the following eligibility criteria:

  • Be a national of a Treaty Country

You must hold nationality of a Treaty country, although you do not have to live there.

  • Have made a ‘substantial’ investment in a US business

You must be seen to have made a ‘substantial’ investment in the US via the business you set up or invest in. The investment must be of a level that will ensure the ongoing operation and success of the business. There is no minimum or maximum amount set for the investment and what is deemed ‘substantial’ and necessary will vary depending on the industry and nature of the business.

It will be important that your E2 visa application makes a compelling case that the proposed investment amount is of the required level, relative to the business in question.

  • Have invested in a viable business

Proof must be provided that the business you have invested in is an actual enterprise with services or goods that can be easily defined.

Funds held in a bank account or speculative ventures are unsuitable for an E2 visa application.

  • Have control of the funds being invested

You must provide proof that you have control of the funds you wish to invest and that you are placing those funds at risk by making the investment. Monies obtained through loans may not be included.

If the enterprise failed or was cancelled and the funds invested would not be lost, then this would not be considered a suitable investment for E2 status.

  • Will create jobs for Americans or make a significant contribution to the US economy

You must show that your enterprise will have a positive effect on the US economy, for example by creating jobs for American citizens.

How to apply for an E2 Visa USA

To apply for an E2 visa, you must first register your company using the Online Non-Immigrant Visa Application (form DS-160).

Once you have completed the application process, including uploading a photo of yourself, print off the application form confirmation page for your own reference but also to present at your interview.

The next step is to create an account on the Visa Appointment Service website. Pay the machine-readable visa application fee and arrange for your passport to be returned to you by courier service once you have attended your interview.

You should now submit any supporting documents electronically.

Evidence of the eligibility of your investment venture

To evidence that your investment is eligible for an E2 visa, you should provide additional information, which will generally include, but is not limited to:

  • Covering letter which describes your business, who will benefit from the business, and how that business is eligible for an E2 visa.
  • Confirmation page from your DS-160 form.
  • Copy of your machine-readable visa fee payment receipt.
  • Letter on company letterhead giving details of your job such as:
    • Company name
    • Job title
    • Salary
    • Allowances
    • Benefits
    • Any other related compensation that you may receive
    • How you are suitable to fulfil the role
    • Company contact details
  • Where applicable, a letter of agreement between the treaty investor and their legal representative or agent, signed by both parties, and stating their contact details.
  • Colour photocopy of the biometric data page of your passport (showing your photograph and date of birth) and colour photocopies of any US visas, US entry/exit stamps, or I-94s.
  • Copy of alterations or extensions to the status granted by US Citizenships and Immigration Services.
  • Where you are a UK citizen, evidence of your UK residency.
  • Your curriculum vitae.
  • Copies of educational certificates and qualifications.
  • Signed statement of intent which makes clear that you will leave the USA when your E2 visa comes to an end.
  • Articles of Incorporation or Organisation for your business.
  • Share certificates, operating agreement, share ledgers or any other documents that evidence your ownership of the business.
  • Where there is a parent company, colour photocopies of the biometric data pages of the passports of the owners of the parent company.
  • Where your business in the US is a subsidiary or affiliate of a foreign corporation, the incorporation and ownership documents of that business.
  • Organisation chart which shows the full ownership structure and legal proof of ownership for all parties concerned, where the chain of ownership includes intermediary entities, or if you have a large company with numerous owners or subsidiaries.
  • Where the investor is a public company with many shareholders, an affidavit signed by the relevant corporate official which states that the company is exclusively traded on the relevant stock exchange, and a copy of the latest trading information.
  • Details of the monetary investment in the US business venture, and evidence of the investment.
  • Where you are purchasing a US business, a signed and dated, valid purchase agreement, if applicable a binding escrow agreement that confirms how the investment funds will be distributed, what would happen if the E2 visa isn’t granted, and how the business will be purchased or set up.
  • Where you are purchasing a franchise, a signed and dated franchise agreement, a copy of the franchise disclosure document, and evidence of franchise fee payment.
  • Details of the source of the invested funds including documentation of the source of the funds, evidence that the funds have been moved to the US, and if the funds have come from a foreign based affiliate or parent company, a copy of that company’s most recent financial statement.
  • Evidence that shows the business is genuine and in operation.
  • Where the business is a subsidiary or an affiliate of a foreign company or group of companies, evidence showing that the foreign company or group of companies is active.
  • Evidence showing that the business now or in the future will be able to make more than enough income to provide for you (the investor) and your family.
  • Where the business is already established and in operation, US federal tax returns for the past 3 years, profit and loss statements for current and previous calendar years, all W-2 forms, 1099s and payroll invoices for the last 2 years.

Employee Documents

In addition to the above, if you are applying as an employee you will also need to complete and provide a Non-immigrant Treaty Investor Application (form DS-156E).

Your application is reviewed

At this point, you will receive an email confirming receipt of your application. Your case will now be reviewed by the E-Visa Unit. The review period takes up to 30 days and during this time, you may be asked to provide further documents.

Your interview

Once your review is complete, either you or your legal representative will be informed and provided with appointment availability. You then have 3 months (90 days) to arrange your interview.

The purpose of the interview is to ensure that your application and investment venture are eligible for an E2 visa.

The interview will take place at your local Embassy or Consulate. At the end of the interview, the officer will tell you whether your visa has been granted. If your application is successful, your passport will be retained so that the visa can be added to it.

E2 Visa USA for Employees

A business which qualifies for E2 status may bring employees into the USA under certain conditions:

  • The employee must have the same nationality as the principal employer who holds E2 status.
  • They must meet the definition of ‘employee’ under the corresponding law.
  • The employee must work as either an executive or supervisory employee or an essential employee with specialised skills

Executive or Supervisory Employee

It will be necessary to provide a job title, job description, work experience record and relevant qualifications for any employee wishing to qualify under this category.

They must also be shown to be responsible for the US business’ entire operation or a significant component of the business.

Essential Employees with Specialised Skills

To qualify under this category, an employee must prove that they possess specialised skills that are essential to the operation of the business in the US. This would include their experience and qualifications, and how those are essential for the role in the US.

It must also be proved that a US worker could not be trained for the role within the required timeframe.

Conditions of E2 Visa USA Status

Once an E2 visa has been granted, the holder is subject to a number of conditions.

For example, the visa holder must continue to work on their business in some way throughout the duration of the visa.

They must only work on their own business; however, an employee may also work for the business’ parent company or one of its subsidiaries if a relationship can be established between the two businesses, the employment is supervisory or executive or requires essential skills, and the terms and conditions of the employment have not changed.

How long does an E2 visa last?

The E2 visa is valid for up to 5 years. You can only apply ahead of expiry for a 2-year extension to renew the visa provided you and your qualifying activities remain eligible, and you wish to continue the investment. You may apply for unlimited 2-year extensions.

Family of E2 Visa Investors or Employees

Holders of E2 status, whether an investor or employee, may bring their spouses and unmarried children under the age of 21 with them to the USA. Their spouse or unmarried children under 21 may also follow them to the USA at a later date. They need not be the same nationality as the qualifying investor or employee.

These family members may apply for E2 non-immigrant status as dependents and should their application be successful, they will be allowed to stay in the USA for the same period of time as the related investor or employee.

Spouses of E2 status individuals are permitted to apply to work in the USA by using form I-765.

Applying for the E2 visa USA – NNU Immigration can help!

Applying for an E2 US visa can be a lengthy and complex process.

As specialist immigration attorneys, NNU can assist you with all aspects of your application, from compiling supporting documents to dealing with the US immigration authorities.

If you have a question about the E2 visa USA, or any other US immigration related matter, please contact us for advice.

This article does not constitute direct legal advice and is for informational purposes only.

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2018-08-28T09:20:11+01:00July 9, 2018|E2 Visa|