Following the end of the US regional travel bans in November 2021, there is no longer a requirement to be granted a National Interest Exception Waiver to enter the USA.
NNU Immigration are specialists across all classes of US visa. If you have a query about your immigration options to travel to the US, whether for work or tourism, contact our dedicated 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.
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:
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.
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.
Note also that investment must 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:
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.
In order for a foreign company to be granted E2 registration as a treaty investor, it will 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.