An E-2 or “treaty investor” visa is a non-immigrant visa that allows a foreign investor to live and work in the United States through a relatively quick process. The investor must be from a country with an established E-2 treaty agreement with the United States and must intend to come to the United States to manage and develop their business venture. The bona fide venture must be viable and the visa applicant must have an active role in managing the business.
Investors can also include their spouse, and any unmarried children under the age of 21, in their application. The spouse of a visa holder may apply for employment authorization to work anywhere in the U.S., which other non-immigrant such as the H1-B and TN visas do not offer. In addition, children who enroll in school do not need a separate student visa and could potentially benefit from in-state tuition rates at certain colleges and universities.
Flexibility to travel abroad without needing U.S. re-entry authorization
Unlimited visa extensions as long as the business remains active
Family visa and authorizations to work and attend U.S. schools
Relatively quick approval time
No exact investment amount required (usually no less than $100K)
Possibility to sponsor employees from the same nationality
Investor may not be subject to world income taxation
LCR works with business plan writers, trusted immigration attorneys and companies that can help you identify the right franchise depending on your need. These are the steps:
Prepare the documentation necessary for the application
Submit application and apply for interview
In-person interview at a U.S. Consulate
Visa issuance and travel to the U.S.
E-2 investors are required to develop a detailed business plan for their venture, including a financial summary of the investment funds and how they will be allocated. The plan should also outline actionable goals and the steps necessary to achieve those goals. Other components of the plan may include a 5-year business plan, an analysis of competitors, and a timeline for hiring employees that is consistent with the growth of the business.
Purchase a Franchise
Many foreign investors find franchises an excellent option for an E-2 visa business venture. The E-2 visa is contingent on having a viable business; if the business fails, the E-2 investor and his/her family may lose their status and have to leave the U.S. Franchises generally already have strong business plans and growth strategies in place, and provide the training and framework needed for the business’s success.
The tax obligation for E-2 visa holders depends largely on the IRS “substantial presence test”, which determines if the investor is considered a tax resident or a non-tax resident of the United States. The test calculates residency based on the number of days the visa holder was present in the United States.
If the E-2 visa holder is considered a tax resident, they will be subject to tax on worldwide income. Non-tax residents, however, will only be taxed on income sourced in the U.S.
Tax residency does not affect an E-2 visa holder’s immigration status.
Grenada, located in the Caribbean, has an E-2 treaty with the U.S. and offers a Citizenship by Investment Program. It can be an excellent route to obtaining an E-2 visa for investors that do not already hold a passport from an E-2 treaty country. Obtaining Grenadian citizenship allows investors and their families the option to also obtain residency in the U.S. in as little as one year through the purchase or creation of a business through the E-2 visa.
Know more about the Grenada Citizenship By Investment program here.
The applicant must be a citizen or national of a country the United States maintains a treaty of commerce and navigation with (Birth citizenship from the treaty country is not a requirement). For a complete list of the U.S. Department of State Treaty Countries click here.
E-2 applicants must intend to come to the United States solely to “develop and direct the operations of an enterprise.” This must be clearly communicated during the in-person interview. An experienced immigration will help the investor prepare for this interview.
Unlike other non-immigrant visas, E-2 treaty investors are not required to have a residence in the country of citizenship to prove non-immigrant intent. E-2 applicants may sell their assets in their treaty country and move all personal property to the United States should they choose.
The nature and source of the funds is an important consideration for E-2 eligibility. The source of the funds used for the investment must come from a legal and legitimate avenue. The funds may be from an inheritance, gifts, or winnings. The inheritance of a business does not qualify as an investment for E-2 eligibility. Instead, selling the inherited business and using those funds to start another business may be a legitimate source of funds for an E-2 visa.
A substantial monetary investment is required for E-2 visa eligibility. An E-2 visa applicant must have invested or is in the process of investing a substantial amount of capital in a viable and legitimate enterprise. A non-profit organization does not qualify. A “substantial amount of capital” is not clearly defined but the amount must be substantial in relation to the total cost of the business venture. A bona fide investment of as low as $50,000-$100,000 may be enough to qualify for an E-2 visa. The higher the investment, the better probability of having the visa granted. Unlike the EB-5 that requires 500K in investment, there is no set amount needed to invest in an E-2 visa.
An E-2 investor must be in control of the funds and of the process of investing. The investment must be valid and “irrevocable.” The investor cannot get the investment back and the funds are to be already irrevocably committed to the business venture. Having the funds in the bank or having a signed contract alone is not sufficient to prove irrevocability. Allocating the funds in an escrow account may be enough to show irrevocable commitment. Although the release of funds from escrow can not be encumbered with contingencies. The release of funds from escrow after E-2 approval may be acceptable for visa eligibility and may still satisfy the irrevocability standard.
Examples of irrevocable investments include:
The applicant must also be entering the United States with the sole intent to develop and operate the business venture. The applicant must show a 50% ownership or control of the venture. An investor can show this in 2 ways
Proving 50% of operational control can be more challenging than proving 50% ownership. The applicant will need to detail all duties and explain the nature of their control and role in the venture. A job title will not suffice. Applicants will have the task of detailing all job duties in order to prove they partake in 50% or more of operational duties. The applicant will be responsible for providing the evidence needed to prove 50% ownership or control.
The funds used for investment in the E-2 business venture should implicate a risk to the investor. An investor must use legal and properly sourced funds that can potentially put the investor at a financial loss. The investor must be using these personal funds at a risk with the hope of gaining a financial return.
For example, using a loan secured by the business or assets of the business cannot be counted towards the investment. On the other hand, using a loan collateralized by the investor’s personal assets may be used. The funds of a second mortgage on a home may be used because they entail the personal financial loss of the investor. In this scenario, the investor is risking a loss at the expense of his personal assets. The funds must be at risk of “partial or total loss.” The investor will be asked to provide evidence proving the risk of financial loss.
The EB-5 Program has lapsed. The US Congress is discussing the legislation that authorizes the program while USCIS reviews the regulations and policies for filing. Because of the recent court ruling that reversed the 2019 Modernization regulations, the investment level has shifted temporarily from $900,000 back to $500,000.
If the program is reauthorized before the regulations are updated, there may be another window of opportunity to file at $500,000.
LCR expects the program to be reauthorized before October 1, and continues to work with international families that want to explore alternative residency options.