The E2 visa USA for Treaty Investors offers individuals temporary permission to come to the US either to set up or invest in a US-based company.
The E2 visa application process is complex and demanding on applicants. Before you can apply for an E-2 visa, either as an investor or an E2 employee, the company must first apply to be registered as an E2 treaty investor business.
You must also have already made investment in the US business prior to your E2 visa application – with no guarantees of success. This means professional advice is crucial to optimise your application for US entry clearance.
Read on for answers to frequently asked questions about the E-2 investor visa, including eligibility requirements, how much to invest and how to apply.
NNU Immigration are specialists across all classes of US visa, including the E2 visa.
The application rules for the E2 visa program are complex. The E2 visa is particularly demanding in its eligibility criteria and requirements for supporting documentation, including submission of financial investment information and a solid business plan.
With exceptional knowledge and insight into the visa application processes, we advise non-US entrepreneurs and investors, their dependents and their employees on available US visa and immigration options, including the E2 visa, providing full support submitting applications to the relevant US authorities.
We also provide a specialist French-speaking E2 visa service for French businesses looking to pursue opportunities in the US.
Contact our US immigration experts
For advice on any aspect of a US visa application, contact our US immigration attorneys.
For advice on any aspect of the E-2 visa application, contact our US immigration attorneys.
For advice on any aspect of the E-2 visa application, contact our US immigration attorneys.
The E2 visa is a nonimmigrant visa, which means the holder is granted temporary permission to live in the US, to set up or invest in a US company.
The maximum period of stay is five years, although the final decision will be determined by your nationality and the discretion of the consulate approving your application. E2 visa holders have permission to travel in and out of the US without restriction.
Investors from one of the treaty nations intending solely to ‘develop and direct’ the company would be eligible to apply for an E2 visa.
In addition, following successful completion of the E2 company registration process, you will be required to seek visas for ‘sponsored employees’ – individuals you wish to employ at your US company.
To be eligible, sponsored employee applicants must:
The employees must apply for E2 status at the consular post where your E2 registration application was filed, and should expect to be invited to interview to discuss their application and specifically to demonstrate requisite managerial level experience or essential skills.
The E2 Treaty Investor visa allows entrepreneurs and business owners from Treaty countries to invest in a US business, either through setting up a new enterprise or by investing in an existing one.
Eligibility for an E2 Treaty Investor visa rests on the following conditions:
One of the more problematic criteria for E2 applicants is the requirement to have made a ‘substantial investment’.
There is no specific definition or ‘brightline’ test to explain unequivocally what is required to satisfy United States Citizenship and Immigration Services (USCIS) eligibility requirements.
Before you can apply for an E2 visa as an individual applicant, your company (non-US) must first be registered as an E2 Treaty Investor Business.
An application evidencing the foreign company’s eligibility must be filed at a US consular post abroad, along with an initial E2 employee visa application. Filing requirements vary from post to post, and processing times can fluctuate based on consular workload. It is best to confirm estimated processing times at the appropriate consular post at the time the E2 company registration and visa applications are filed.
To be eligible for company registration, the following key requirements, among others, must apply:
USCIS uses the phrase ‘substantial amount of capital’ when referring to the E2 investment. They define it as being substantial in relation to the business cost, and sufficient to ensure the investor’s commitment to the business and their involvement in the business, and the ongoing success of the business.
The investment must also represent a personal financial risk to the investor and must be in an active opportunity; passive investments, like stocks and bonds, do not qualify under the E-2.
Some key points to consider include:
There is no specific or arbitrary minimum or maximum investment amount that would guarantee you are granted an E2 Treaty Investor visa. To qualify, you will need to show there has been and will be a ‘substantial investment’ in a US enterprise. ‘Substantial’ is assessed in a proportional sense. It is a subjective standard with no bright-line test or fixed threshold.
To make its decision, your application and the proposed investment amount will be assessed by USCIS against a number of factors:
What is seen as ‘substantial’ is tied to the type of business that you invest in, whether that be a new business or an existing enterprise, and how much it will cost for the business to become and remain operational.
In essence, the definition of substantial is entirely relative to your individual case.
A substantial investment is one that is sufficient to ensure the investor’s commitment to the successful operation and development of the enterprise by its proportion to the total cost of the business.
If the company is an ongoing concern in the US, then the focus will be the actual revenues that the business has achieved, and the number of jobs created in the United States.
In the absence of prescriptive direction, we are able to advise on what the authorities require in a successful application. The key takeaway for applicants is that there is no arbitrary figure to work to.
You will need to calculate the level of investment (costs) as appropriate to the nature of your opportunity ie relating either to start-up a new business (lease, inventory, marketing, IP etc?) or for the purchase price of existing business. Additional factors are also likely to influence the investment level, such as the industry and type of business. A consultancy practice, for example, should require a smaller level of investment than a manufacturing business. There are inevitably pros and cons to this approach.
While it can be more challenging for applicants to understand and pre-empt what level of investment adjudicators will accept as substantial, this degree of flexibility means it may be possible to secure the visa with significantly less investment than say the EB-5 program.
The proportionality test is used to decide whether an investment is substantial or not. It compares two figures:
Using these two figures, the proportionality test calculates a percentage of investment in comparison to the cost of the business (whether new or existing).
For instance, where the business purchase price is $100,000, and the investment amount is $90,000, the percentage is 90%.
By comparison, where the cost to set up a business is $500,000 and $250,000 has been invested, the percentage is 50%.
Where a business with a market value of $3 million receives an investment of $900,000, the percentage is 30%.
Generally, the lower the cost of purchasing or setting up a business, the higher the percentage must be to be seen as ‘substantial’. Therefore, the higher the cost of the business, the lower the percentage needs to be.
So, any of the above investments may be acceptable for an E2 Treaty Investor visa, as long as all other eligibility conditions are met, regardless of the level of start-up costs, whether high, for instance, in the case of a factory, or low, as in when starting a consultancy business.
When you have invested in an existing US business, the value of the business will be taken into consideration, whether you are purchasing the business in its entirety, purchasing part of the business along with other investors, or otherwise making an investment in the business.
The value of the business is therefore taken as how much it was purchased for, or a value that is deemed to be a fair market value.
Where your investment has taken the form of setting up a new business, the figure of interest to USCIS will be the complete costs of setting up your new business, from the initial start-up costs to the funds needed to make that business operational.
If you’re setting up a new business with low start-up costs, this can be the most difficult scenario when applying for an E2 Treaty Investor visa because you can only apply for the visa once you have made the investment.
Making the investment means spending the investment. You can’t simply have the money in your bank account waiting to pay set-up costs as they occur.
Your business must be established before you can apply for an E2 Treaty Investor visa and you must be able to demonstrate that your investment has been spent, what it has been spent on, and that the investment is at risk. For this reason, it is recommended that you pay as many set-up costs as you can before you make your visa application, for instance, your lease, suppliers, or employee costs.
The E2 investor must have control of the investment funds and have obtained them from lawful and acceptable sources, including:
Loans that are secured against the investor’s personal assets, for instance, a second mortgage on the investor’s home, are generally acceptable, as are certain unsecured loans.
Loans secured on the business that is being invested in for the purpose of the E2 visa, however, are not an acceptable source of funds for an E2 investment.
The amount of financing through loans that is allowed as part of your investment is down to the discretion of the embassy or consulate officials.
Where the E2 investor purchases a business, the percentage of secured financing allowed rises with the price of the business. For instance, a business purchased for $100,000 would be allowed a lower percentage of secured financing than a business purchased for $300,000.
Your application for an E-2 visa also requires submission of a formal business plan. The plan should detail your projections for the business, and how your E-2 investment is going to be utilized to make the business operational and successful in meeting your growth targets.
The owners of the foreign company must be nationals of a country that has a treaty of commerce with the United States, or a country designated by Congress as eligible for participation in the E-2 non-immigrant visa program.
If you are a national of another country, there may still be alternative entry options available to you, depending on the nature and required duration of stay. Take advice on your particular circumstances.
Even if you have satisfied the treaty investor visa requirements, the maximum possible duration of the E-2 visas will be dictated by your country of origin. For example – for UK citizens, the maximum is five years, but for Mexican nationals it is 12 months. Some countries operate under a maximum of 3 months stay (e.g. Egypt, Jordan).
Looking specifically at the treaty between the US and UK, E-2 classification requires that UK citizens reside in the UK at the time they apply for their E-2 visa. You will need to evidence that UK residence has been maintained through for example maintaining a job and home in the UK.
Once you are in a position to have determined your level of investment funds and having made the investment as required, your next step will be to complete the formal application process.
The first step is to register your company using the Online Non-Immigrant Visa Application (form DS-160). You will be required to upload a photo of yourself.
Once you have completed the application process, print off the confirmation page for your own reference and to present at your interview.
Set up an account on the Visa Appointment Service website. Pay the machine-readable visa application fee, arrange for your passport to be returned to you by courier service, and schedule your interview appointment.
You should now submit any supporting documents electronically. These will include:
In order for a foreign company to be granted E2 registration as a treaty investor, it will be necessary to gather and submit documentation evidencing that each requirement has been met. Such documentation would include, among others:
E-2 visa processing times are determined largely by the US Consular post where you filed your petition (usually in your country of residence). As a general guide, you could expect E-2 visa processing to take around one to two months. Processing can take longer if there are issues with your application. For example, where you have received a request for further information. This emphasises the importance of ensuring your application is full and complete when filed.
4-6 weeks after submitting your application and business plan to the US Embassy, you should expect to attend an E2 interview. You will be questioned on the information you have provided about yourself and the business in your application and business plan.
It will be important to prepare well for the interview, to be familiar with the detail of your submissions and to answer any general questions for example about your immigration history and education and work background.
The business plan will also be scrutinized to ascertain the degree of economic benefit your business would bring to the US market.
The spouse and children of an employee granted an E2 visa may apply for E2 visas, which will allow them to reside with the employee in the US. E2 dependent visa applications may be made at the time of the E2 employee’s interview, or by scheduling a separate interview at a US consular post following approval of the E2 employee’s visa application.
With E2 dependent status, E2 spouses can work without restriction in the US. They do not have to be employed by the E2 business.
E2 company registrations are renewable indefinitely (for up to five years at a time), provided the foreign and US companies continue to meet E2 requirements.
E2 visa applicants should apply to extend their E2 visa before expiry of their current grant of leave to maintain continuity of status in the United States. However they must demonstrate as part of their renewal their continued intent to return to their home country following completion of work in the US.
There are additional factors to take into consideration when applying to extend, including the requirement to provide specific documentation to accompany and support your renewal application. Take professional advice on your specific circumstances.
There is no limit to the number of times you can apply to renew your E-2 visa. Each renewal is an application, requiring a petition and supporting documents to be submitted evidencing that you have met the requirements under the visa and that you continue to be eligible under the route e.g. creating at least two full time jobs for US resident workers.
If your application is rejected, denied or refused you will be informed by letter. The letter will identify the grounds for refusal. On this basis, you may wish to seek professional advice on your options to either petition or to reapply.
An E2 visa does not provide a direct path to permanent resident status but options may be available to you depending upon a number of factors, including whether you continue to operate an overseas business or have extraordinary achievements, awards or recognition in your field. Seek advice on the options available to you.
The E1 Treaty Trader visa is potentially open to individuals or businesses of treaty nations engaged in substantial trade activity with the US – as opposed to the E2 which is relevant where there has been and will be further significant investment in a US business in which the investor has at least a 50% ownership. Take advice on suitability based on your circumstances.
The process of obtaining an E2 Treaty Investor visa can be lengthy and complex. NNU Immigration are specialist US immigration attorneys with a wealth of knowledge and experience in E-2 visa applications and company registrations.
If you’re considering applying for the E-2 Treaty Investor visa, or have previoulsy made an E2 visa application that has been refused, contact us.
Need specialist advice? Speak to our experts.
Need specialist advice? Speak to our experts.
NNU Immigration is a leading firm of US immigration attorneys advising companies, entrepreneurs, investors, individuals & families from across the globe.
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Address: Thomas House, 84 Eccleston Square, London, UK, SW1V 1PX
NNU Immigration is registered in England & Wales Company No. 09815477.
Address: Thomas House, 84 Eccleston Square, London, UK, SW1V 1PX
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NNU Immigration is registered in England & Wales Company No. 09815477.
Address: Thomas House, 84 Eccleston Square, London, UK, SW1V 1PX