With an extensive background in corporate, business, and immigration law, one of my passions is to represent foreign investors and entrepreneurs who are brilliant in business, sophisticated professionals, and hardworking and challenging individuals willing to inject their financial and labor efforts into the U.S. economy. Their success depends on several factors, but it all begins with selecting the right visa and the immigration attorney with the experience and sophistication necessary to facilitate the most favorable immigration outcomes available to foreign investors and entrepreneurs. E-2 investors allocate capital, embrace ambiguity, and are challenged on regular basis. Working with an attorney who understand both aspects of business and immigration law will facilitate the most favorable immigration outcomes. Planning is the key to success.
The E-2 visa
The E2 visa allows a foreign person who is a national of a treaty country to invest in the U.S. by purchasing an existing business or starting a new business. This visa also allows a U.S. based business to bring foreign executives or managers to the U.S. Whether the E-2 visa applicant is an employee of the treaty-country or the actual investor, in both cases the applicant must be of the same nationality of the U.S. company. The E-2 foreign employee can be a manager/supervisor or a worker with special skills making him or her essential to the business.
Reasons Why the E-2 Visa Is an Attractive Visa Option
The E-2 visa is an attractive option for several reasons. Unlike other employment-based visas like H-1B, L- 1A, L-1B, the E-2 visa does not require a job offer or a sponsoring employer. This visa can be obtained with smaller investment and without a significant job creation requirement like the EB-5 visa. It can be processed quickly at the U.S. Consulate of the country where the foreign national resides, it permits self-employment, and has no limit of the maximum number of extensions. Although this is a non-immigrant visa, there are ways to converting an E-2 visa into a green card.
The E-2 Visa Requirements
a. There Must Be a Treaty of Commerce Between the U.S. and the Country of the Foreign National’s Nationality.
This is the basic and primary requirement for this visa. There must be a treaty of commerce and navigation between the United States and the country of the foreign’ s national nationality. Qualifying treaties may include treaties of Friendship, Commerce and Navigation and Bilateral Investment Treaties. INA 101(a)(15)(E). 9 FAM 402.9-4(A)
b. The Treaty Investor, Whether an Individual or an Entity, Must Be a National of the Treaty Country.
The treaty investor, either an individual or an entity (corporation, limited liability company or other business organizations), must hold the nationality of a treaty country. This is certainly straight forward when the investor or employee is an individual. But if the treaty investor is a business or an employing entity, then the nationality is determined by the nationality of the individual owners of the business. The law requires that the ownership must be traced to the nationality of the individuals who are ultimately the owners.
In this regard, at least 50 percent of the business must be owned by nationals of the treaty country. However, when shares of the business entity are owned by U.S. permanent residents of U.S. citizens (when dual citizenship is allowed), they cannot be considered in determining majority ownership by nationals of the treaty country.
For larger companies and corporations with complex corporate structures, whose stock is exchanged in one country or in more than one country, then the E-2 applicant must satisfy by the best evidence available, that the business meets this requirement.
c. The Investment Must Be Real.
The E-2 treaty investor must have already invested or is actively in the process of investing capital for the U.S. enterprise. Funds and other assets must be at risk in the commercial sense with the objective of generating a profit. Additionally, the investor must posses and control the funds and must irrevocably commit the capital to the E-2 enterprise.
The U.S. Department of State (“DOS”) actively scrutinizes this requirement. Extensive and convincing evidence must be provided at the time of the application to satisfy this requirement. The intention is “to weed out risky undertakings and to ensure that the investor is unquestionably committed to the success of the business.”
The type of evidence required by DOS and USCIS is extensive and can be found on the U.S. Embassies and Consulates in the respective treaty countries.
d. The Investment Must Be Substantial.
One of the most common questions my clients ask is: how much should I invest? There is no set minimum or maximum amount. DOS has stated that the purpose of this requirement is to ensure that the business is not speculative but is or soon will be successful. When considering this requirement, the consular (or USCIS) officer must view the proportionate amount of funds invested, in light of the nature of the business and the projected success of the business. This means that the lower is the investment, the higher the investment must be to be considered substantial.
The adjudicator will weigh the nature of the business against the amount of investment made. Of course, the spectrum of the investment is vast. On one side of the spectrum are the small investments that qualify for an E-2 visa such as the acquisition of an on-going business (franchise, restaurant, supermarket, convenience store) or a consulting firm or to start a brand new business venture. In the opposite extreme, a substantial investment would be, for instance, the purchasing a manufacturing business, that easily cost many millions of dollars.
The proportionality of the investment means that the amount of the investment must be sufficient to demonstrate the investor’s commitment to the enterprise by: 1) Purchasing a proportionate amount of an existing business or investing funds to create a newly enterprise. 2) Ensuring the success of the operations. 3) Funds must be sufficient to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
It is highly recommended to discuss this and other requirements with an experienced attorney in connection with the investor’s goals.
e. The investment may not be marginal.
This is a common issue for small investments and a common issue why an E-2 visa or a visa renewal is denied. The investment that does not have the capacity to generate income more than enough to provide minimal living for the treaty investor and his or her family and does not have the present of future capacity to make a significant economic contribution is marginal.
In other words, if the investment will create job opportunities or will have a significant positive economic impact, the chances of visa approval will increase. The projected economic capacity of the enterprise should be realizable within five years from the date the investor commences operations. A well drafted business plan with credible financial projections and /or expert opinions from business consultants will support this requirement.
f. The Investor Must Be Coming to the U.S. to Develop and Direct the Enterprise.
The applicant investor must show that he or she will come to the U.S. to develop and direct the investment. This means that the applicant will have control over the investment based on his/her ownership of at least 50 percent of the E-2 investment and the investor will have operational control through managerial or executive position, by exercising discretionary authority at a senior-level position.
g. If the Applicant is an Employee of the Treaty Investor, He or She Must Be Employed in a Supervisory, Executive, or Highly Specialized Capacity.
The E-2 treaty employer who is bringing an employee to the U.S., must demonstrate that the E-2 visa applicant duties must be primarily and principally executive or supervisory in nature. To evaluate whether the activities are executive or managerial, the adjudicator will consider: 1) applicant’s previous experience or skills as executive or manager; 2) whether the salary and position commensurate with executive or supervisory employment; 3) that the position is executive or managerial in the overall organization structure; 4) the discretionary authority to make senior-level decisions.
This may be a challenging requirement for small, family-owned businesses, where the investor will engage in hands-on routine work. Planning for the success of your visa and visa renewal is essential. It is advisable to discuss your case with an experienced attorney with ample time.
How do You Renew Your E-2 visa? Planning for Success
Many clients ask me, when is the time to think about a visa renewal? The answer is when your visa is issued. The initial E-2 visa validity depends on your country of origin. It is usually issued for a valid period of five years with a two-year extension as long as you maintain the necessary qualifications. In certain cases, when the adjudicator may have concerns about the future success of the business, the E-2 visa may be issued for a shorter period.
In my experience, E-2 visa holders whose visas are about to expire, encounter a number of issues at the time of visa renewal, when they failed to plan in advance. Generally speaking, to renew your E-2 visa, you must demonstrate that you continue to satisfy all the visa requirements. It is, basically, a new application and a new adjudication.
Planning the visa renewal in advance is the key for a visa success. As soon as you start doing business, you should also plan for the renewal. Most small investors are focused on the business success and forget about visa requirements. Working with an experienced immigration attorney will save you time, money, and problems.
These Are Important Preliminary Considerations
- Speak with an attorney: My clients have a higher rate of success when I work closely with them ahead of time and plan carefully how to meet each of the visa requirements. We implement a timeline and establish deadlines and review financials periodically to assess the situation of the business in advance and make any necessary adjustments. If you delay the renewal process and cannot meet the requirements for the visa renewal or your business is not salvageable, an experienced attorney can help you to try a new business and a new E-2 visa.
- Work on your financials: This requires that as soon as you start doing business, you need to work hand-in-hand with a bookkeeper and CPA to prepare all the necessary financial documents: balance sheet, profit and loss statements, file the business tax returns and payroll taxes.
- Hire employees: The sooner you can start hiring employees the easier will be to show that the business is not marginal.
Visa Renewal Issues
At the time of the E-2 visa renewal, the focus of the adjudicator will be the performance of the business during the initial validity period. For the initial visa application, you relied on projections. For visa renewal, you must present actual documents and must show that all requirements are met. One of the most common issues of visa renewal is to show that the business is not marginal. You must show that the business has generated sufficient income, created job opportunities, and the actual performance of the business has been promising for the last few years. If the company’s revenues are minimal and does not have employees or perhaps you waited until last minute to hire employees, this may possess a challenge when applying for E-2 visa renewal.
Visa Renewal and Extension Process
You can renew your E-2 visa in the U.S. by submitting an application to extend your status with USCIS. However, most E-2 visa holders apply for extensions at the U.S. Consulate abroad.
If you do not want to leave the US, then you have the option to file an application to Extend your status with USCIS and you can be granted an additional two years in E-2 status. All E-2 visa extension application with USCIS requires that you file:
- Form I-129 – petition for nonimmigrant worker.
- Form I-539 -application to extend or change nonimmigrant status for family members of the principal E-2 Visa Applicant.
- Your I-94 – arrival and departure record.
- Your original I-797 – only if your E-2 visa has been extended in the past.
- Proof that you have maintained your nonimmigrant status
- Proof that you are physically present in the U.S.
- Copy of your passport including your E-2 Visa.
- Letter explaining in detail why an extension is required with supporting evidence.
- Copy of business tax returns for the past two years and other financial and payroll documents.
Most applicants renew their E-2 visa at the US consulate abroad. The E-2 visa renewal process requires that you:
- Submit form DS-160 with the Department of State.
- Pay the DS-160 fee.
- Complete the DS-156E and organize supporting documents.
- Present documents showing that you still meet all the requirements of the E-2 visa. Each consulate has specific requirements for visa submission and procedures. You may want to check with the consulate where you will be applying for specific instructions.
- You will be called to attend an interview at the consulate.
How Many Times Can You Renew the E-2 Visa?
As long as you can meet all the elements of the E-2 visa, there is no limit to the number of times an E-2 visa can be renewed. You can either apply for a visa extension or a visa renewal.
What Happens if Your E-2 Visa Is About to Expire and You Cannot Travel Abroad Due to COVID 19 and Current Travel Bans?
I explain in detail regarding the travel bans here. If you are an E-2 visa holder and your visa is about to expire, you have some options to consider:
- I-94: You should check the expiration date of your I-94. This means that you can stay and work in the U.S. until the expiration of the I-94, even if your visa has already expired. Each time you return to the U.S. from a travel abroad, you must have a valid E-2 visa. After you enter, a new I-94 will be issued for two years of authorized stay under the E-2 status. For instance, if your E-2 visa expired on April 30, 2020 but your I-94 expires on May 10, 2022, you can stay in the US until that date.
- Third Country Consulate: You may apply for E-2 visa extension at a different U.S. consulate, other than the US Consulate in your home country. Consult with an attorney or call the U.S. Consulate where you are intending to apply to make sure they will accept your application.
- Extension of Status: If you are unable to travel abroad for a visa renewal and your visa is about to expire, you can apply for an extension of status with USCIS as explained above.
The E-2 visa can be renewed and there is no limit to the number of times it can be renewed. Planning for renewal is key for success. To demonstrate that you meet the visa requirements you need to start planning and strategizing the renewal process and requirements. Working with an experienced immigration attorney will help you to position your company for success.