Sometimes aliens want to invest in a business in the United States but are not sure whether they want to live here permanently. In other cases, aliens want to invest in a business in the United States and get a green card but their investment does not qualify for the employment based 5th preference category for green cards through investment. In both of these situations, the solution may be an
E-2 treaty investor visa. E-2 treaty investor visas are non-immigrant visas that allow the alien to enter the United States for an indefinite period of time. The visas are based upon treaties that the United States has entered into with various countries for the purpose of investment through the million dollar investment. The visa should not be confused with an E-1 visa which is based upon treaties for trade.
The alien must be a national of the country with which the U.S. has an investor treaty. Being a national of a country means that the person was born there, not necessarily that the person is still a citizen of that country. The alien need not show that he is coming to the U.S. for a specific period of time. He simply has to have an ultimate intention to depart the U.S. and not remain permanently. E-2 visas are granted for 2 to 5 years and are continuously renewable.
The alien must qualify under one of two categories to be eligible for E-2. In the first category, the person entering the U.S. must be coming solely to develop and direct the operations of an enterprise in which the alien has invested or is actively in the process of investing a substantial amount of capital. In the second category, the alien must be a key employee from a treaty country, including executives and supervisors or persons who make their services essential to the efficient operation of the enterprise.
The principal employer can either be a person with the nationality of the treaty country in or outside the U.S. or an enterprise or organization that is 50% or more owned by the treaty national.
The alien must have either invested or be actively in the process of investing his own funds for the purpose of the treaty investment. Those funds must be in the employer’s possession or control. They must be “at risk” which means that they are subject to partial or total loss if the investment fails. The funds can be placed in escrow pending the approval of the E-2 application.
The amount of the investment must be substantial. The Department of State uses the relative/proportionality test. There are three parts to this test. They are:
(i) the amount invested weighed against the total cost of purchasing or creating the enterprise;
(ii) the amount normally considered sufficient to ensure the investor’s commitment to the successful operation of the enterprise; and
(iii) the magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise.
I have found the State Department and U.S. INS is usually satisfied if the investment is $100,000 or more. The enterprise cannot be solely for the purpose of earning a living for the investor and his family. An enterprise is marginal (and not approvable) if it does not have the present or future capacity to generate more than minimal living for the investor and his family. If future capacity is at issue, the enterprise must show a 5 year plan. The 5 year plan should address the following issues:
(i) the investment will expand job opportunities;
(ii) it will generate other sources of income;
(iii) it will generate income substantially above what would be considered a living; and
(iv) the investor will not work simply as a skilled or unskilled worker.
An alien who is interested in obtaining an E-2 visa must first determine whether the country of which he is a national has the necessary treaty with the United States. The application for E-2 needs to address each of the elements necessary for approval. It is a very detailed and complex process. Countries who have treaties with the U.S. includes Taiwan, Philippines Japan and Indonesia.
