E2 Visa Company Registration for US Treaty Investors

E2 Company Registration

Eligibility & Application Guidance for US E2 Company Registration

Under the E-2 Treaty Investor visa, as well as the individual applicant(s) ie. the investor or the employee having to meet the eligibility criteria, the company itself must also satisfy certain requirements to be E-2 eligible. To this end, both the company and the individual(s) have to make applications to USCIS evidencing their eligibility.

The specific application process to follow will be determined by whether you are the E-2 treaty investor (owner) or an employee of the E-2 company, although both types of applicant will – if successful – be granted the same type of visa (i.e. the E-2).

Do you have a query about the E-2 Company Registration?>>

Is your company E-2 eligible?

A foreign company may be eligible for E-2 company registration if it has invested a substantial amount of money in a new or existing US business. The owner(s) 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.

Below are some key requirements a company must fulfil to apply for an E-2 company registration.

The foreign company must be owned by nationals of a treaty county
The foreign company must be owned and controlled at least 50% by individuals holding passports from a treaty country (e.g., United Kingdom). Generally speaking, ownership interests must be traced to the individual level, unless a publicly traded company.

The foreign company must be investing in a new or existing enterprise
USCIS defines an E-2 investment as the company’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. The company’s investment may be for the purpose of establishing a new business venture, or purchasing a pre-existing business.  In either scenario, you must demonstrate that the capital the foreign company is investing is substantial. If the company is on 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 US.

The investment must be in a bona fide enterprise, must be substantial and may not be marginal
The business has to be a real, active commercial or entrepreneurial undertaking which produces services or goods for profit. 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.  The investment cannot be marginal, and must have the capacity to generate more than a minimal income.

The foreign company must be in possession of the funds it will invest and funds must be fully committed to the business
The foreign company must demonstrate that the capital invested is irrevocably committed to the enterprise and subject to partial or total loss in the event that the entity fails. The funds invested must primarily derive from corporate earnings. Additionally, the invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise.

The foreign company must be able to provide the source of funding
The foreign company must show a clear and legitimate path regarding the source of capital it will be investing.

An employee coming to work in the United States pursuant to an E-2 company registration, must be commissioned to fill an executive, managerial or essential role
In order to quality for an E-2 visa, an employee must demonstrate managerial level experience or essential skills.

For UK citizens – An employee must present evidence of his/her ongoing residence in the UK
The treaty between the US and UK which provides for E-2 classification requires that UK citizens reside in the UK at the time they apply for their E-2 visa. Although there is no strict formula for proving residence, factors such as maintaining a residence and a job in the UK strongly support residence has been maintained.

E-2 Company registration process

To register a foreign company with the E-Visa Unit:

1. Complete form DS-160

2. Create an account on the Visa Appointment Service website in the name of the E visa applicant.

3. Pay your MRV fee.

4. Submit your supporting documents by email. In order to for a foreign company to be granted E-2 registration as a treaty investor, it will necessary to gather documentation evidencing that each requirement has been met. Include the following:

• Evidence of the nationality of the foreign company;
• Evidence of the trail of investment from the foreign company to the US company, and usage of such funds to develop the enterprise;
• Evidence that the US company is, or soon will be, a real and operating enterprise;
• If the foreign company is investing in an operating business, evidence that the business is more than marginal; and
• If the foreign company is investing in a start-up, evidence that the business will be more than marginal.

5. Review of your application by the E-Visa Unit. Cases are reviewed by the E-Visa Unit to ensure that they meet the requirements found in 9 FAM 402.9.  Cases are reviewed on a first in, first out policy based on when the case if found to be complete.  Additional documents may be requested during the review process. The current review time for each case is 45 days. Please plan in advance when considering an application for an E visa as it is not possible to expedite the case.

6. Notification of adjudication. This communication will confirm that your case has been reviewed and can proceed to the next stage. You will be advised of available dates for your visa interview and provided a list of additional documents which may be required for your application to be processed.

7. Investor to attend interview. Your interview has to take place within 90 days of the notification E-Visa Unit notification.

E-2 company registration processing times

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 E-2 company registration and visa applications are filed.The length of the E-2 company registration will be determined by the consular officer at the initial applicant’s visa interview, and the maximum allowable time granted depends on the foreign company’s owners’ country of citizenship.

E-2 Employees

For the validity of the E-2 company registration, individuals whom you wish to employ at your company may apply for E-2 status at the consular post where your E-2 registration application was filed without having to submit company documents prior to their interview. They will however need to bring documents to the interview to present to the adjudicator. Such individuals must:
  • Have the same nationality as the owners of the foreign company;
  • Be filling an executive, managerial or essential role at the US company detailed in the E-2 company registration documentation;
  • Intend to return to their residence abroad following completion of their work in the US; and
  • If they are UK citizens, present evidence of their residence in the UK.

Do you have a question about an E-2 Company Registration? NNU can help!

US visa applications are facing greater scrutiny than ever by American immigration authorities. Given the requirement to have already made financial investment, there is a lot at stake for E-2 treaty investor applicants to get their application right. At NNU, we’re a team of US immigration attorneys specialising in the US E-2 visa. We can advise on and guide you through all aspects of your application to remove the hassle for you and to enhance your prospects of success.

For advice about your E-2 visa application, contact us.

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

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2018-10-12T01:19:24+01:00September 20, 2018|E2 Visa|