By: Geoffrey J. Lamoureux
An E-2 visa is an excellent option for nationals of E-2 treaty countries who would like to purchase or setup a small business. An E-2 visa provides temporary nonimmigrant status to the investor and his or her spouse and unmarried children under 21 years of age.
The full list of E-2 Treaty Countries is available on the Department of State website. Some E-2 countries include: the Philippines, Australia, Canada, China (Taiwan), Japan, South Korea, Mexico, and the United Kingdom.
To qualify for an E-2 visa, the investor must place capital, such as funds or assets, at risk in the commercial sense with the objective of making a profit. The capital must be subject to partial or total loss if the investment does not perform well.
The business must be an active commercial or entrepreneurial undertaking, producing goods or services for profit, and not be a mere paper organization. Investing in underdeveloped land or residential property will not suffice.
The investor must have possession and control over the capital, which must have been received legitimately, such as through savings, gift, or inheritance.
The investment capital must be irrevocably committed to the business, and the investor must be close to the start of actual business operations. He or she must have more than a mere intent to invest, or mere possession of dormant funds in a bank account. Placing funds in escrow to purchase a business pending approval of the E-2 visa, with a legal mechanism that irrevocably commits the investment funds while protecting the investor if the application is denied, is permissible.
If the investor is purchasing a business, the purchase itself demonstrates the necessary irrevocable commitment of the investment amount to the enterprise.
If the investor is starting a new business, the investor must spend a significant percentage of the investment capital before the irrevocable commitment of the investment amount will be satisfied. The amount spent for the purchase of equipment and inventory may be counted as part of the investment. Lease payments for property or equipment may also be counted toward the investment. More than one month of payments may be counted if they are made in advance.
There is no bright-line minimum investment amount to qualify for an E-2 visa, however, $100,000 is generally considered to be the preferred investment amount. An investment amount of $80,000 may also be acceptable, depending on the nature of the business. The cost of purchasing an established business is its purchase price. The cost of starting a new business is the actual cost needed to establish the business to the point of operation.
The enterprise must generate more than merely enough income to provide a minimal living for the investor and his or her family. In this regard, the investor should submit a business plan to show the ability of the business to make a substantial profit within five years.
The investor must also have the ability to develop and direct the business, which can be demonstrated by owning at least 50 percent of the business, or by having operation control through a managerial position.
Investors currently in the United States may apply for E-2 status through a change of status with United States Citizenship and Immigration Services. However, investors who travel after acquiring E-2 status through a change of status in the United States must submit a new application to a United States consulate abroad before returning. An investor may also apply for a multi-entry E-2 visa in the first instance at a United States consulate abroad.
The investor and his or her dependents may be admitted for an initial period of not more than two years. However, if the investor continues to hold a valid E-2 visa, he or she may depart the United States before the expiration of the two-year period and reenter the United States using the visa. At the time of admission, the investor may request admission for an additional two years. The investor must intend to depart the United States upon termination of his or her status.
The investor’s spouse may work for any employer in the United States, and dependent children may study.
E-2 visa adjudication standards are complex and ever-changing. Therefore, it is important to consult with an experienced and knowledgeable immigration attorney to ensure that the business is properly purchased or setup, and that the application is properly documented to maximize the likelihood of success.
