How to Get an E2 Visa for USA
In this article, we take a look at how to get an E2 visa for the USA, including a summary of the eligibility criteria and the process to follow to make your application.
The E2 application process does require considerable preparation to ensure your case is built and presented effectively and meets the key criteria of the route and other decision-making considerations, particularly in the current climate of heightened visa scrutiny.
Before starting your application, it pays to take time to review the visa eligibility criteria and have a clear understanding of what US immigration authorities will be looking for when assessing your E2 application.
E2 visa for investors and entrepreneurs
The E2 visa offers non-US nationals the opportunity to invest in or establish a US-based enterprise. It remains an attractive option for individuals who want to live and do business in the States for a fixed period, offering many advantages over other US investment routes.
For example, the E-2 can potentially demand a smaller initial investment than the EB-5 programme.
In most cases, it also offers less onerous taxation liabilities than those incurred through US permanent residence or citizenship, since you will generally only be taxed on US income, provided you do not exceed the substantial presence test.
As such, the visa is also popular among individuals who have renounced their US citizenship but who retain business interests and require presence within the US market.
As the E2 visa is a temporary, nonimmigrant visa, processing is also typically quicker than other investment routes, usually taking a matter of weeks rather than months.
A huge benefit of the E-2 visa is that visa holders can apply to bring their spouse and dependent children with them. E2 spouses can then apply to work in the US, and their children can attend school.
The E2 is, however, only suitable for active investors who will be engaged in the running of their E2 business. Passive investment activity such as stocks and bonds would not qualify under the E2 visa requirements.
How to get an E2 Visa for the USA
If the route sounds right for you, your family and your business, you will need to look at how to get the E2 visa.
In summary, you will first need to register your US-based enterprise as an E2 company. You then file a petition and attend a visa interview where you will need to provide supporting documentation evidencing your eligibility under the E2 requirements. This should include a detailed business plan.
E2 visa eligibility
The E2 visa requirements include:
You must be a national of an E2 country to be eligible for the E2 visa. You should check whether your country has a treaty of commerce and navigation with the US and as such permits you to proceed with an application.
Your nationality will also determine how long you can be issued an E2 visa for, as different treaties carry different maximum visa periods. There can also be variation based on nationality as to how many times you can apply to extend your visa.
The next area to focus on will be the level of investment you intend to make in the US-based enterprise.
The standard is that the investment amount must be ‘substantial’. In the absence of an arbitrary threshold, USCIS provides outline guidelines that investments will be considered relative to the specific E2 company and must be sufficient to make the enterprise operational and profitable. For example, if you are applying on the basis of a start-up company, you will need to show you are investing enough to meet the cost of launching the business. The adjudicator will take into account factors such as the type of business that is being invested in; consultancy businesses, for example, are likely to require lower levels of investment than say manufacturing businesses, which typically demand higher capital investment and ongoing running costs.
It will be for you to propose the level of investment amount in your business plan and to detail how your proposed investment will be sufficient in making the business a success by generating enough income within five years (or the relevant visa expiry date) and creating employment for US resident workers. Business performance will be assessed in detail should you choose to apply to extend your E2 visa.
Another critical requirement is that the investment has to be more than ‘marginal’, providing more than a minimal living for you and your dependents in the US. You will also need to show that the E2 business is profit-seeking and not for example a charitable organisation.
The investment also has to constitute personal, financial risk to you. You have to show the funds came from you, and not, for example, a loan, and that the E2 business will create sufficient financial risk to you that you will be motivated to achieve a profit margin that exceeds your living expenses and creates economic benefit to the US through jobs for US resident workers.
Working in the US
Under the E2, you will be required to work on the E2 business, that is, “develop and direct the investment enterprise.” If you do not intend to take an active role in the enterprise, the E2 is unlikely to be suitable for you.
Importantly, you cannot work for another business while in the US under an E2.
To evidence your committment to the enterprise, you will need to own at least 50% of the business or be able to show significant operational control to satisfy this requirement.
Intent to leave
The E2 visa is not designed to offer permanent residence. While visa holders in many cases will not be limited in the number of extension applications they can make, during the initial visa application and any subsequent extension petitions, you will be asked to prove your intention to leave the US on completion of your E-2 business activity or by the end of your visa validity period.
E2 visa for employees
As well as permitting your family to join you, the E2 also permits applicants to be accompanied by key employees. Specific rules do however apply.
The employee must hold the same nationality as you, the main E2 applicant.
In addition, you will need to show a valid reason for the employee to work in the US and that the individual possesses skills not readily available within the US resident labor market. This will include evidencing that the employee works in a suitably senior or executive role the company, or holds special qualifications that make the employee essential to the operation.
Applying for the E2 visa
The specific application process to follow will be determined by the consular post where you file your petition, but in general, you should expect the following E2 visa process:
Complete the E-2 visa form online and pay the fee
The form you need to complete is the DS-160, which is used for all nonimmigrant US visas.
The form asks questions about your personal and contact details, education and employment background, travel history to the US and any previous US visa applications you have made.
When completing the form, you will also have to upload a photograph in a format that complies with US visa requirements. You then pay the application fee. Once you have completed the form, print off the confirmation page and retain as you will need to take it with you to your visa appointment.
Book your appointment
Having completed the form, you will be asked to schedule your appointment at the US Embassy or Consular Post in your country of residence or the country where you filed your petition.
Check the interview instructions given by the relevant Consular post as these can vary between posts.
In particular, you will need to know which documents to bring to the visa interview. You should bring your passport, visa application confirmation and proof of fee payment, as well as additional documents to support and evidence your eligibility.
The particular supporting documentation will be determined by your circumstances, the nature and type of company and many other factors. Taking advice will help ensure you are compiling the right documents to present your strongest case and enable you to confidently and competently answer the adjudicator’s questions
For example, your business case should address certain core information about your company’s financial projections, business strategies and operational demands. Source of investment funds is also an area of particular scrutiny which will require evidence to show compliance.
If you are not able to answer or provide evidence relating to a specific query, and the adjudicator does not feel able to make an informed decision, they may ask that you provide the additional documents after the interview. This will inevitably delay processing, making it crucial to ensure the original application is comprehensive.
Your family can apply at the same time as you and will be required to attend the interview with you, or they can apply once your visa has been granted.
During the interview, your biometric data will also be taken.
If approved, you can expect your passport to be sent back to you after a couple of weeks, (depending on consular workload), with the visa issued inside, allowing you to travel to the US.
This is an important distinction. While the E2 visa permits you to travel to the US, you will still be subject to border checks, and your entry will be at the discretion of border officials.
Do you have a question about the E 2 visa?
If you are looking to live and work in the United States as an E2 visa Treaty Investor, preparation will be essential when approaching your application, since your investment and future plans will be at stake.
As specialist US immigration attorneys, we can guide you through the complexities of the E-2 visa application process, providing expert guidance to ensure the petition, documentation and business plan are comprehensive and effective in demonstrating your eligibility.
For advice on your E-2 visa application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.