by Shriom Arza
Obtaining a visa can be a very confusing and expensive process for any individual who wants to come to the United States. There are many different types of visas with different requirements and rules that one must follow. One of the most confusing, but also sought after, visas are E-2 visas. E-2 visas are for investors coming to America who want to develop and direct the operations of a business enterprise in which they have invested a substantial amount of capital/assets.
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. For a list of participating countries, you can visit the included U.S. Department of State link: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html. The E-2 Treaty Investor visa allows the investor to live and work in the US to direct and develop the business, and allows entry of executive, management and essential skills employees. In larger businesses, management and executive level employees may be sent to the US instead of the owners of the business. Employees that are also nationals of the same E-2 visa Country as the investor may also qualify for an E-2 visa.
The E-2 visa can continue to be extended indefinitely, as long as the business continues to operate in the United States. Unlike the H-1B visa category, there is no quota limit for E-2 visas. However, unlike the H-1B visa, E-2 visas are not a path to permanent residence. There is an investor visa that can lead to permanent residence, the EB-5 visa, but this requires a much larger investment of at least $1,000,000.00 ($500,000.00 in certain cases).
The minimum investment necessary to qualify for E-2 Treaty Investor status is not st in stone and varies depending on the nature of the business. However, it is usually recommended for anyone applying for the E- 2 visa to be ready to invest a minimum of $100,000-200,000 to invest. In exceptional cases, the USCIS may consider applications with amounts as low as $50,000.For consultancy businesses, such as software businesses, an investment of tens of thousands of dollars or less may suffice if a very robust and well-crafted business plan is included in the initial application. Investments should be substantial and essentially irrevocably committed to be used for the company. The amount invested should be enough to make sure the company is successful and able to run. This is why smaller investments to register the business as an E-2 business can be more difficult because they can be harder to prove as being substantial. The investment must be for a real operating enterprise or an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle/passive investment does not qualify, and uncommitted funds in a bank account or similar security are not considered an investment that will assist in an approval for an E-2 visa. Many clients call our office stating that they want to start an E-2 business by buying some real estate properties in the United States to use as rental properties. Unfortunately, such a business model will not qualify for an E-2 visa, as the US Department of State considers that a “passive” business.
The business being invested in must generate significantly more income than just to provide a living to the investor and their family, or it must have a significant economic impact in the United States. The business should also have its own dedicated premises, which means it cannot be run from the investor’s home. One must also have control of the funds, and the investment must be at risk in a commercial sense. Loans secured with the assets of the investment enterprise are not allowed. One must be coming to the United States to develop and direct the enterprise. If the applicant is not the principal investor, they must be considered an essential employee, employed in a supervisory, executive or highly specialized skill capacity by the company where the money is being invested in. If one is an ordinary skilled or unskilled worker then they do not qualify. The investment being placed in the business cannot be used to create a job solely for the individual investor. Previous applications with these visas tell us that successful applications usually consist of business that will employ at least three to five other people.
Individuals who have an E-2 visa will be allowed a maximum initial stay of two years. Requests for extension of stay in for E-2 visas are granted in increments of up to two years each. There is no limit to the number of extensions an E-2 nonimmigrant may be granted. However, if one’s E-2 visa is not extended then they must maintain an intention to depart the United States when their status expires or is terminated. In fact, one of the principal requirements for an E-2 visa is the visa holder’s intention to leave the United States once their E-2 business ceases to operate.
An E-2 visa holder who travels abroad may generally be granted entry back into the US, and if determined admissible by a U.S. Customs and Border Patrol Officer, will be given an automatic two-year period of readmission when returning to the United States. Spouses and dependents of E-2 visa workers can also apply for E-2 visas, and will normally be granted the same period of stay as the principal E-2 visa holder. Interestingly, E-2 spouses and dependents do not need to be the same nationality as the applicant they qualify through. E-2 visa spouses are allowed to work while in the United States. It is advised that they apply for work authorization which, usually takes a few months to process. Children under the age of 21 can study in the US but are not allowed to work under the E-2 Treaty Investor visa category. Once a child living in the United States under a parent’s E-2 visa reaches the age of 18, they are no longer allowed to stay in the US under their parent’s E-2 visa, and must find another visa that they qualify for to be able to live in the US. The E-2 Visa application process may seem like a long and difficult process, but with a well-crafted and concentrated approach, the process can become much less stressful. If you wonder if you or your employees are eligible for the E-2 visa, then please feel free to contact the Law Office of Gian-Franco Melendez, LLC to speak with an experienced immigration attorney about your options.