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How to Register an E2 Company

How to Register an E2 Company

As a non-US national, when looking to oversee the running of a US business, or to bring someone from oversees to work for you in that business, this will often mean obtaining an E2 treaty investor visa. Below we look at how to register as an E2 treaty investor business, together with the detailed documentation required in support, allowing you or a valued employee to go on to secure that all important permission to work in the US.

 

What is an E2 treaty investor business?

An E2 treaty investor business is any business that satisfies the criteria for an E2 treaty investor visa, in this way enabling the owner of that business to apply for permission to oversee its running or an employee of an E2 treaty investor to work for that business.

The E2 visa will allow a national of a treaty country, including the UK, to come to the United States when investing a substantial amount of capital in a US business. A treaty country is a country with which the US maintains a treaty of commerce and navigation or a qualifying international agreement, or has otherwise been deemed a qualifying country. A current list of qualifying countries can be found on the US Department of State website.

To be eligible, the principal applicant of an E2 visa must be coming to the US to solely develop and direct the operations of a new or existing business in which they have already invested, or are actively in the process of investing, a substantial amount of capital. This must be established by showing at least 50% ownership of the investment enterprise, or possession of operational control, such as through a managerial position or other corporate device.

A ‘substantial investment’ is assessed in a proportional sense, with no fixed threshold. This is essentially an investment that’s regarded as sufficient to ensure the investor’s commitment to the successful operation and development of a new or existing business, measured by its proportion to the total cost of that business. It’s recommended that the investment should be of an amount between $100,000 to $300,000, although smaller investments can still qualify.

 

How do you register as an E2 treaty investor business?

Before you or an employee can apply for an E2 visa, you must first register the E2 treaty investor business with the E-Visa Unit. An application must be made online using Form DS-160. You’ll also need to pay the relevant fee and email a number of very detailed documents in support.

Registering as an E2 company from the UK is a 3-stage process:

  • Step 1: complete the online application form DS-160 via the US Department of State Consular Electronic Applicant Center website
  • Step 2: go to the US Department of State Visa Appointment Service website and create a user account, enter your DS-160 confirmation number and pay the application fee
  • Step 3: electronically submit your supporting documents.

Only once steps 1 to 3 are complete, and the application has been received by the E-Visa Unit, will the case be accepted for review. The E-Visa Unit will confirm receipt of the case by email. Unsolicited documents will not be accepted from the applicant after this point, although additional documents may be requested during the review process.

 

Supporting documents to register an E2 treaty investor business

To register as an E2 treaty investor business requires a number of supporting documents to be able to satisfy the various E2 visa requirements, including ownership and investment, proof that the business is real and operating, and proof that it’s more than a marginal business. You’ll also need a detailed overview of the business, all of which can take a great deal of time to prepare, so this must be done well in advance of the application to register.

The documents required to register as an E2 treaty investor business include:

 

Section A: a cover letter

To register as an E2 company or business, a cover letter will be required addressing all of the E2 visa eligibility requirements, including that:

  • the requisite treaty exists, which it does for UK applicants
  • as the treaty investor, you have the nationality of the treaty country
  • you have invested, or are in the process of investing, into a US business
  • this business is a real and operating commercial entity
  • your investment is substantial
  • your investment is more than a marginal enterprise solely for earning a living
  • you’re able to develop and direct the US business
  • you intend to leave the US when your E2 status expires.

 

Section B: your forms

To register as an E2 company or business, you’ll need to provide a copy of the DS-160 confirmation sheet, a copy of the payment receipt showing that the fee has been paid and, if applicable, a signed letter of agreement between you and your legal representative.

You’ll also need to provide a detailed letter discussing your role within the business, printed on official headed paper. This must describe the nature of the business, your title and duties, your qualifications, your salary and benefits, as well as the company’s contact information.

 

Section C: applicant information

To register as an E2 company or business, detailed information will need to be provided about you as the principal applicant, including a colour photocopy of the bio data page of your passport, and any US visas, US entry/exit stamps and I-94’s, together with a copy of any extensions or change of status granted by USCIS (Form I-797). You’ll also need to submit a copy of your CV and educational certificates, evidence of ongoing residency in the UK, and a signed statement of intent to depart the US upon termination of your E2 visa.

 

Section D: proof of ownership

To register as an E2 company or business, you’ll need various documents to prove ownership of a US business, including articles of incorporation (for a corporation) or articles of organisation (for LLC’s). You’ll also need any share certificates, operating agreement, share ledgers or other documents to confirm ownership, as well as colour photocopies of the bio data pages of the passports of the owners of the ultimate parent company.

Additional detailed documentation will be required if the business is either a subsidiary or affiliate of a foreign corporation, you have a large company with several owners, or you’re a public company with multiple shareholders, none of whom owns more than 50%.

 

Section D: proof of investment

To register as an E2 company or business, you’ll need to provide a detailed breakdown of all funds invested into the US venture, together with evidence of that investment, such as a signed valid lease for business premises and payments, evidence of equipment and inventory purchases, or evidence of intellectual property.

If you’re buying an existing business, you must provide a signed valid purchase agreement and, where applicable, a binding escrow agreement that explains how the funds will be distributed if the visa is issued and what happens when it’s not issued. Alternatively, if you’re purchasing a franchise, you must provide a signed and dated franchise agreement, a copy of the franchise disclosure document, plus evidence of payment of the franchise fee.

In any of these scenarios, you’ll need proof of the original source of funds. This could include the sale of property or a sale of a business, an inheritance, loans or earnings, together with evidence that those funds have been moved to the US. If the funds originate from a foreign based company, you must produce a copy of their latest financial statements.

 

Section F: proof that the business is real and operating

To register as an E2 company or business, you must provide evidence that the business is real and active. This could include relevant state or federal licences, any customer agreements or contacts, any other evidence confirming ongoing and future work, or marketing and promotional materials. If the business is either an affiliate or subsidiary of a foreign company or group, you’ll need evidence that the foreign company or group is active, such as financial statements, an annual report or other documents that confirm ongoing trading.

 

Section G: proof that the business is more than marginal

Finally, to register as an E2 company or business, you’ll need proof that the business is more than a marginal enterprise. If the business is already operating, you must provide US federal tax returns for the last three years, detailed profit and loss statements for the current and previous years, plus all W-2, 1099s and/or payroll invoices for the last two tax years.

If the business is a new start-up, you must provide a comprehensive business plan, a detailed five-year profit and loss forecast, together with the assumptions on which that forecast is based, and a breakdown of start-up costs necessary for the business to become operational.

 

How much does it cost to register as an E2 treaty investor business?

All E2 visa applicants are required to pay a non-refundable and non-transferable MRV application fee of $205. This must be paid prior to registering as an E2 company. Payment of the application fee is also required regardless of whether or not an application results in the issuance of an E2 visa. If the application is denied, an additional fee will be needed to pay for a fresh application. An additional fee of $105 will also need to be paid to the Embassy cashier on the day of the interview when applying for an E2 visa from the UK.

 

What are the next steps when applying for an E2 treaty investor visa?

Once the review of the E2 treaty investor business is complete, you or your legal representative will be notified that the case has been reviewed. You will also be provided with a list of any additional documents required and advised of appointment availability.

You must attend an interview within 90 days of this initial notification. A number of interview documents will need to be prepared in advance, including a copy of the confirmation page for the application form DS-160 and appointment confirmation page, your passport, and a colour passport photo if one has not already been uploaded to the DS-160, to name but a few.

As employees of registered treaty investor businesses don’t have to submit any documents in advance, they’ll be required to attend their interview with all the documentation required for employees including, for example, a detailed job description letter and copies of qualifications.

If, following interview, an E2 visa is granted, this will only be for 2 to 3 years. This is because the E2 visa is a temporary nonimmigrant visa. It can be extended any number of times, provided the investment business continues to meet all of the relevant requirements under US laws and regulations, but will not provide a route to permanent residency.

Equally of note, the E2 visa carries with it significant risk for treaty investors. This is because of the requirement for substantial upfront investment with no guarantee of securing a visa to oversee the running of your business or for an employee to work for you within that business.

Expert advice from an immigration specialist should always be sought before starting or buying a stake in a US enterprise, and applying to register as an E2 treaty investor business.

 

Do you have a question about an E2 company registration?

To optimize your prospects of making a successful E2 visa application, expert guidance should be sought to ensure the petition, documentation, business plan and E2 cover letter are comprehensive and effective in aligning to the requirements of the visa category.

As specialist US immigration attorneys, we can guide you through the complexities of the E2 visa application process. For advice on your E2 company registration, contact us.

 

 

Register an E2 company FAQs

What businesses qualify for E2 visa?

To qualify for an E2 visa, a business must be one in which the treaty investor has invested a substantial amount of capital. They must also be planning to develop and direct that business.

 

How much investment is required for E2 visa?

There’s no prescribed amount to apply for an E2 visa, rather the investment must be ‘substantial’. This will all depend on the nature of the business, the US consulate dealing with the application and the overall strength of the application.

 

What is an E-2 treaty investor?

An E-2 treaty investor is someone who is eligible to apply for an E-2 treaty investor visa. This is a visa that will allow the holder to oversee the running of an existing or new US business.

 

Can E2 visa holder work for another company?

Typically, an E2 visa holder, whether this be the principal investor or an E2 employee, must work only for the business in which the investment has been made, meaning they cannot usually work for any other company in the US.

 

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

By Nita Nicole Upadhye

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