US Investor Visa Requirements
For non-US nationals looking to invest in a US enterprise, there are two primary immigration routes to consider: the E-2 Treat Investor visa and the EB-5 investor program. Each has its merits and downsides to weigh up your eligibility against the US investor visa requirements.
E2 visa for Treaty Investors
The E2 visa permits nationals of E2 Treaty nations to enter and work in the US in a business in which they have made a substantial investment. It also allows employees of the company with specialized skills to work in the US.
The E-2 visa is initially granted for … but as a non-immigrant visa, it does not offer holders a route to US permanent residence.
There is no cap on the number of E2 visas allocated and E2 investors are permitted to bring spouses and minor children to the US.
For your investment to qualify, you will need to demonstrate your ownership of the funds and that the source of the funds are legitimate.
Nationality test
There has to be an appropriate Treaty of Trade and Commerce in place between the US and your home country.
You must also evidence that the Treaty national applicant owns at least 50% of the enterprise. Where subsidiaries are involved, it will be a matter of tracing ownership to the parent company and looking at shareholders at the top of the organization to determine whether the business meets the nationality test.
Investment factors
The investment is required to be ‘substantial’. There is no threshold amount specified in the rules, however the Consulate will be looking for proof that sufficient funds have been placed into the business to make it an operational enterprise.
There may be other factors to consider when demonstrating investment levels. For example, if the business has secured a valuable contract in the US, a smaller investment amount could be acceptable if there is evidence that revenue will be generated in the immediate future.
Applicants
Skills, qualifications of the individual applicants, as investors or employees.
Job creation
What economic benefit will this investment have on the US economy?
The E2 requirements extend to you as the applicant, the investment funds and the business itself:
- You are a national of a Treaty country
- You have or are in the process of making the required investment
- The investment qualifies as ‘substantial’
- The enterprise is legitimate and operational
- The enterprise is more than ‘marginal’
- You have the capability to direct and develope the business
- If an employee, you will be undertaking an executive or supervisory role in the US company and have the skills to perform this
- You plan to leave the US on expiry of your E2 visa or completion of the E2 assignment
E2 supporting documents
Your E2 visa application must be accompanied by documents evidencing the eligibility of the applicant, the investment, and the business.
The specific documents you will need to provide will be determined by your proposed investment activity.
In addition to the supporting evidence, a business plan will also be required, detailing how your investment will satisfy the job creation requirement.
EB-5 Visa Program investor requirements
Through the EB-5 program, non-US investors may become eligible to secure a US Green Card by investing $1 million into a new commercial enterprise that results in the creation of ten full-time jobs for US workers, or investing $500,000 through a ‘Regional Center’.
With permanent residence status, EB-5 visa holders are permitted to live, work and study in the US for an initial period of 2 years.
Both routes allow investors to bring spouses and minor children to the US.
Unlike the uncapped E2 visa, there is a restriction on the number of EB-5 visas which can be allocated. 10,000 EB-5 visas are made available each calendar year for foreign investors and their dependents. Of this, 3,000 are for Regional Center investors.
For your investment to qualify, you will need to demonstrate your ownership of the funds and that the source of the funds is legitimate.
EB-5 visa applicants are permitted to take one of two investment options:
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Investment in a new commercial enterprise undertaking lawful profit-making activity.
This includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
This definition does not include non-commercial activity such as owning and operating a personal residence.
The investment must create full-time positions for at least ten qualifying employees, ie resident US workers within a two-year period immediately following the approval of the EB-5 petition.
There are a number of conditions attached to the job creation requirement, for example relating to indirect and direct jobs, and troubled businesses. EB-5 visa Applicants are advised to take advice on their petition to ensure they meet the criteria.
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Investment through a Regional Center.
Regional Centers direct foreign investments into pre-approved capital investment projects that satisfy the EB-5 visa eligibility criteria. These are typically found in “targeted employment areas,” generally rural or high-unemployment zones.
The benefit for investors is that this option removes the need to personally manage the business and to meet the job creation target.
EB-5 supporting documents
Your EB-5 visa application must be accompanied by documents evidencing your eligibility.
The specific documents you will need to provide will be determined by your proposed investment activity.
For example, if you plan to invest in a new commercial enterprise, you will need to submit evidence that the enterprise qualifies as ‘new’ and is ‘for profit’. You will also need to show how you are or will be involved in managing the enterprise. Evidence will also of course be needed of your investment activity, verifying the lawful source of the funds.
In addition to the supporting evidence, a business plan will also be required, detailing how your investment will satisfy the job creation requirement.
If you are filing to remove conditions in advance of your visa expiry, extensive documentation covering the two-year visa period in respect of your investment activity and job creation achievement, such as payroll records, bank statements, contracts and tax returns.
Need assistance?
NNU Immigration are specialists across all classes of US visa, including applications for investors.
US investor visas are particularly demanding in their eligibility criteria and the documents required to support applications.
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 EB-5 visa, providing full support with compiling and submitting applications to the relevant US authorities.
We help EB-5 visa applicants through both the Regional Center program and the direct investment route. We can also advise where alternative visa options such as the E-2 visa or L-1 visa may be more appropriate for your needs and circumstances.
US immigration policy is undergoing a period of considerable upheaval; we can advise on the prevailing impact of any changes in US visa rules that may impact the entry routes available to you.
For advice about your E-2 visa application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
