The E-2 Investor Visa

Citizenship

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.

Intent

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.

Clean Source of Funds

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.

Substantial Monetary Investment

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.

Control of the funds

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:

• A lease
• Purchase of property
• The purchase of goods already imported or bought in the United States. They cannot be in transit.

50% Ownership or Control

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

• The investor proves he owns 50% or more of the business
• The investor can prove 50% or more of operational control of the business

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.

Risk of a partial or total loss

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.