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What are the requirements for an E2 Investor Visa?

What's the E-2 Visa and what are the E-2 requirements?

The E2 Investor Visa is intended at least in part to provide a way for individuals from Treaty Countries to facilitate economic growth in the US. That is an important phrase and something to always keep in mind when looking at the requirements. The bulk of the requirements is intended to prove that the E2 Investor Visa applicant will run a business to do just that.

While the list of requirements for an E2 Visa is very specific and all must be met, showing the US Government that an applicant has met all requirements is subject to a great amount of judgment. The US Immigration Officials seek to be fair, flexible, and uniform when adjudicating an E2 Investor Visa application.

Make no mistake. The burden of proof is with the applicant, and the judgment of the US Immigration Official reviewing the application rises above all else. If the Immigration Official is in any way uncertain as to the applicant’s qualifications, then they can request whatever document they want until the uncertainty is resolved.

The key to a successful E2 Investor Visa application is to understand or employ someone who does all of the requirements and how to prove the applicant meets them.

America has never been closer.

What are the requirements for an E2 Investor Visa?

 
In evaluating E-2 applications, consular officers (while from a different legal source it is the same for USCIS officials) must determine whether the:


(1) Requisite treaty exists;

(2) Individual and/or business possess the nationality of the treaty country;

(3) Applicant has invested or is actively in the process of investing;

(4) Enterprise is a real and operating commercial enterprise;

(5) Applicant's investment is substantial;

(6) Investment is more than a marginal one solely for earning a living;

(7) Applicant is in a position to "develop and direct" the enterprise;

(8) Applicant, if an employee, is destined to an executive/supervisory

position or possesses skills essential to the firm's operations in the

United States; and

(9) Applicant intends to depart the United States when the E-2 status terminates. 

(9 FAM 41.51 N1.2 of the US Foreign Affairs Manual states)


This seems to be a pretty straightforward and simple list and in reality, it is. Remember however that it is for the applicant to prove they meet the requirements. It is not sufficient to simply state that you are from a Treaty Country, rather an E2 Visa applicant must prove through documentation that they are from a Treaty country. These documents include, birth certificates and passports or any other naturalization documents.


A typical package presented to the US Official reviewing an E2 Visa package can range from 150 to 250 pages of documentation including Civil Documents, Banking Documents, Business Plan, Five-Year Full Financials, Government Forms, Marketing Material and more. Additionally, each US Consulate and the USCIS have very specific packaging requirements that if not met will result in a denied visa.


A closer look at what each requirement means

Some of the most common questions we hear are:

How much money do I need to invest?
Do I have to invest my money before I apply?
Do I need a Business Plan and Five-Year Financials?
What is a Treaty Country?
Can I invest in a Franchise or buy an existing business?
Can I have partners go in with me?
Can I use a loan for my investment?
Can money in my business' bank account count towards the investment?


And the list goes on and on—all very legitimate questions and ones that almost all applicants have. The answer to these questions is in part in the judgment of the US Government Official and, in part, found in the meaning or details under each of requirements. Let's take a closure look at the details under each requirement.

The requisite treaty exists; The US Immigration and Nationality Act requires that a treaty of Friendship, Commerce and Navigation (FCN), or a Bilateral Investment Treaty (BITS) exist between the US and another state before an Individual or Business can be eligible for an E2 Visa.

There is not any judgment or discretion here; the country is either on the list or it is not. A list of Treaty Countries can be found elsewhere in this blog at https://www.vizamerica.com/the-new-tax-law?. Thus, the answer to the question What is a Treaty country is simple, it is a country on the list of countries holding a FCN or BITS treaty with the US.

Individual and/or business possess the nationality of the treaty country; Again, there is very little if any discretion here. The individual or business (as business' nationality is that of its owner) is either a national of a Treaty Country or they are not. The US Government will require proof such as a Passport or Birth Certificate or both.

The Applicant has invested or is actively in the process of investing; There are a couple of different topics under this requirement.

1. The E2 Investor Visa applicant must have invested or be in the process of investing in qualifying for the E2 Visa.

The Applicant must prove that they are in possession and control of the funds (the money is theirs) and that they received the money by legitimate means. The funds can be from savings, inheritance, gifts, and loans. So yes, a loan can qualify for investment funds so long as the new business' assets do not secure the loan. All funds must have originated from a legitimate source, which means the US Government will want to know where your money in savings came from (how did you get it) and even if a gift the how the person giving you the money received the money must be proven.

Thus, the answer to the question Can I use a Loan for my investment is yes so long as it is not secured with the business' assets.

There is a great deal of documentation required here to "trace" the source of the funds from beginning to end (the end being the business' bank account). Some examples of documents would include; Bank Statements, Loan documents, Pay Statements from a prior job, Wire Transfer Receipts, and more.

2. Investment Connotes Risk.

In the E2 Investor Visa context, this means that the Applicant has possession and control over funds that they then invest in a venture in hopes of generating a return. If the funds are not subject to partial or total loss should the business fail, then the funds are not considered "At Risk". A reasonable amount of funds can be held in the business' bank account for normal operation expenses during startup (working Capital) and still be considered as part of the investment.

Thus, the answer to the question Can money in my business' bank account count towards the investment, is yes so long as the US Consulate official believes that the amount is reasonable for a short period of time for working capital requirements. This is typically proven via the five-year financial projections.

3. Funds Must be Irrevocably Committed.

This is probably the second most common concern potential E2 Investor Visa applicants have. The US Government requires proof that the investment is "Real" and "Irrevocable". This means the Applicant must have either already invested funds for goods and services or be in the process of investing in a manner that, if approved, the funds are committed without the investor being able to retrieve their funds to spend for another purpose.

Proving this to the US Consulate Officer or USCIS official is a matter of showing all receipts, contracts, and/or irrevocable escrow agreements (for money placed in an escrow account). Thus, the answer to the question Do I have to have invest my money before I apply is yes but in certain situations, some of the investment can be protected should the Applicant's E2 Visa application be denied.

4. Enterprise is a real and operating commercial enterprise;

This requirement is straightforward in that the business must be engaged in a for-profit manner to generate a return on investment. The business cannot be a not for profit enterprise or passive (investment in an asset where the return is generated through appreciation such as real estate properties). Any for-profit business is eligible - some examples of which are; Franchises, New Startups, or an Existing Business. Thus, the answer to the question Can I invest in a Franchise or buy an existing business is yes, so long as it is for-profit and not passive.

Demonstrating to the US Consulate Officer or USCIS Official is as simple as showing; Invoices, Lease Agreements, Pictures of the Office (not a home office), Marketing Material, and more.

5. Applicant's investment is substantial;

This is by far the biggest issue on the potential E2 Investor Visa's mind, or better known as How much money do I need to invest? Unfortunately, the answer to this question is – it depends. Despite what many web sites and blogs indicate, there is no mandatory amount or minimum amount that must be invested. This subject will be discussed in greater detail in a future installment but for now suffice it to say that:

1. The investment must be large enough to ensure the E2 Investment Visa holder's commitment to the success of the business and

2. The investment must be large enough to ensure the success operation of the business
There are a number of ways this is demonstrated to the US Consulate Officer or USCIS Official including; Five-Year Financial Cash Flow and Balance Sheet and Industry Average Startup Investment Research from credible sources.

6. Investment is more than a marginal one solely for earning a living; The investment regardless of size must not be made in a marginal enterprise where the return is only sufficient to provide for the E2 Investor Visa applicant and their family's living expenses. Remember, one of the guiding principles of the E2 Investor Visa program is to facilitate economic growth in the US. This is demonstrated through the Business Plan (for more on that https://www.vizamerica.com/are-dividends-an-expense?fbclid=IwAR2pgvSBdXmZsTxe1ggMsVv6QWRpSmg3jmFlAoMPO0sbAL73v30UXurhwQw ) where profit reinvestment, staffing and overall growth of the business is discussed. So the answer to the question Do I need a business plan with five-year financial projections is absolutely yes! There is no hard requirement for a business plan, but the US Consulate Officers and USCIS Officials expect to see one, and there is no better way to describe the business, how it will succeed, and how it will provide a positive economic impact.

7· Applicant is in a position to "develop and direct" the enterprise;

Without exception, the E2 Investor Visa applicant must show that they own at least 50% of the business and that they will develop and direct the activities of the business. Thus, the answer to the question Can I have a business partner is yes, so long as the above condition is met.

This is demonstrated through Job Descriptions, Formation Documents, and the entities Operating Agreement.

9· Applicant intends to depart the United States when the E-2 status terminates;

The E2 Investor Visa program is a Non-Immigrant Visa program as opposed to an Immigrant Visa ("Green Card"), which means when the Visa expires, the individual must either apply for a renewal of the Visa or return home. You can read more about this athttps://www.vizamerica.com/the-quickbooks-setup-process. A simple letter attesting to your returning home once your Visa has expired is all that is required here.

Wow, that is a lot of information for eight simple requirements, and of course, each case is unique and stands on its own merits. As such, there is no formula or template that fits all cases, which is why each Applicant should invest in both a Qualified Immigration Attorney to interpret the law for a specific case and E2 Investor Visa Consultant to take the attorneys specific direction and generate the mounds of required documentation.

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SUMMARY: The Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services (HHS), announces that CDC's Amended Order: Implementing Presidential Proclamation on Safe Resumption of Global Travel During the COVID–19 Pandemic no longer will be in effect beginning at 12:01 a.m. eastern daylight time on May 12, 2023. Consequently, noncitizen, nonimmigrant air passengers will no longer be required to show proof of being fully vaccinated with an accepted COVID–19 vaccine before boarding a flight to the United States. DATES: Starting at 12:01 a.m. Eastern Daylight Time on May 12, 2023, noncitizen, nonimmigrant air passengers will no longer need to show proof of being fully vaccinated with an accepted COVID–19 vaccine to board a flight to the United States.
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