This article will cover all of the E-2 visa requirements a Foreign investors must meet in order to apply for an E-2 visa. The applicant must prove their nation of origin is one with a treaty investment agreement with the United States. They are also required to prove their intention for moving to the U.S. is E-2 business-related, and that they plan to direct their lawful business in compliance with relevant regulations. Applicants should be prepared to give documentation as it relates to their business plan, as well as their investment. They are expected to supply evidence that they plan to leave the U.S. when their visa expires, unless they wish to stay and renew.
If the foreign investor does not own at least 50% of the E-2 business, the owners with an interest of 50% or more must be of the same nationality as the applicant. Also, if the principal investor is a business entity, rather than an individual, it carries the same nationality as the individual.
Qualifications for Treaty Investors
There is a lot to consider when applying for a visa, and there is even more for employment-based visas. The qualifications for E-2 visas are extremely specific, and applicants must adhere to the requirements in order to successfully establish, or purchase a U.S.-based venture. The list below summarizes the conditions as set forth by the United States Citizenship and Immigration Services (USCIS), which prove the venture is not only qualified for an E-2 business, but will also bring value to the United States as well as its citizens and consumers alike.
In order to qualify for an E-2 visa, the applicant (an individual or a business entity itself) must meet the following credentials:
- The applicant must be a national of a country which has a treaty with the United States
- The applicant must be the owner or an executive, supervisor or otherwise essential employee
- The applicant must show ability to develop and direct their business
- The applicant’s intent for moving to the U.S. is to either develop their E-2 business,
- The applicant must own the business, unless it is owned by at least 50% of nationals from the same country as the applicant
- The applicant must have made, or will make a substantial investment into the business
- The applicant’s investment source must be lawful and in good faith
- The applicant’s investment must have been, or will be put at risk
- The applicant’s investment must be irrevocably committed to his or her E-2 business
- The applicant’s business must be lawful and bonafide
- The applicant’s business must create jobs for U.S. citizens
- The applicant’s business must stimulate the United States economy
- The applicant’s business must bring a substantial profit, not just to make a living
- The applicant’s business must be close to being operational if it is not already
- The applicant must intend to reside in the U.S. through the duration of his or her E-2 visa
- The applicant must intend to depart the U.S. upon the completion/expiration of their visa
As the E-2 business must be a bonafide enterprise, it has to be shown to be a real and active venture which produces goods and/or services for a profit. Some documents which prove the business is bonafide includes, but is not limited to, the following list.
- Employer Identification Number (EIN), or a notice of assignment from the Internal Revenue Service (IRS)
- Tax returns if available
- Licenses for the business
- Escrow documents
- Lease agreement
- Organizational chart of the business
- Quarterly wage reports
- Applicable payroll summaries (W-2s and W-3s)
- Bank statements, utility bills, and advertisements/telephone directory listings
- Financial statements
- Contracts with vendors
- Customer agreements if applicable
While foreign investors whose business is not yet operational still get approved for E-2 visas, having business-related documentation increases their chances that much more.
What Is a Marginal Enterprise?
The USCIS has ruled the following, “A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.” More information about treaty investors and marginality can be found on their treaty investors website.
Therefore, E-2 enterprises are required to be non-marginal. The implication is that the enterprise must generate, or be able to generate a substantial profit within five years of the E-2 visa issuance.
Another way to prove the E-2 business is non-marginal is to demonstrate the present or future capacity to make a significant economic contribution to the United States. This can be demonstrated by indicating whether the business currently employs [U.S.] workers, or will employ them in the future.
If the cost of the business is of a lower amount, the investment must be higher to be considered substantial. When the application – more specifically, the business plan – is reviewed by an immigrations or consular officer, it must pass the proportionality test. Otherwise it will be deemed marginal.
Individual vs. Foreign Business
As applicants are the principal investors, it is the individual who will need to meet all qualification requirements. Alternatively, the foreign business itself can be the principal investor. When this is the case, the business’s nationality reflects that of its investor.
If it so happens that the applicant holds dual citizenship, applications must be filed based on the nationality of the treaty nation. If the business is the investing entity, the exact same applies to the business.
The Department of State website is a great resource to find all treaty nations of the United States.
Conclusion of E-2 Visa Requirements
In order to qualify for an E-2 visa, investors must be citizens of a treaty nation. He or she must invest in a real and operating enterprise. Their investment must be substantial and from a lawful source. For the purposes of obtaining an E-2 visa, the investor must fully intend to remain/reside in the United States for the duration of their visa, but must also intend to leave upon expiration. The foreign national must either own 50% or more of the business, or that much must otherwise be owned by nationals from the same country of citizenship.
Some other requirements may include documentation about the business or the employees, such as an Employer Identification Number (EIN), tax returns, business licenses, escrow documents, lease agreements – commercial or otherwise, payroll and bank statements, as well as contracts with vendors.
The business cannot be marginal and must bring (or project to bring) substantial revenue. If the income is merely enough for the investor to provide for themselves/their family, his or her business will disqualify them from being granted an E-2 visa. While accurate projections can support the claim of a non-marginal business, plans for creating economic stimulus can also demonstrate this claim. Especially when U.S. citizens are already employed, or preparations to do so are currently being made.
The lower the cost of the business, the higher the investment must be. In other words, the investment must pass the proportionality test. Otherwise it will be considered marginal.
Just as individuals will have to meet all of the requirements to receive an E-2 visa, businesses acting as the principal investor must meet the same qualifications. In addition to this, the nationality of the business corresponds to that of the investor, and therefore must be a treaty nation. This includes cases where the foreign investor is a dual citizen. The investor and/or their business must use the treaty nationality to apply for the visa. The nationality of the business entity is always based on the applicant or business owner.
Frequently Asked Questions About E-2 Visa Requirements (FAQs)
I want to apply for an E-2 visa, am I required to stay in the United States until my visa expires?
After recipients are granted an E-2 visa they are free to travel as often as they want or need to.
Does my business have to be fully functional by the time I apply for an E-2 visa?
No it does not have to be operational at the time of the E-2 visa application. However, the closer to being operational, the better. The reason behind this is that it proves the business is lawful and bonafide, as well as whether it generates substantial income, and how many U.S. citizens are currently working in the business. This also removes the necessity of having to project financials.
After I get an E-2 visa, do I have to live in the United States?
The applicant must live in the U.S. after receiving their E-2 visa. He or she must also first give proof to the USCIS or a consular officer that the visa seeker desires to enter the U.S. only for the purpose of developing and directing the enterprise listed on their visa application.
Do I need to hire employees for my E-2 business?
Yes, E-2 business owners must hire employees. Otherwise, the enterprise is considered to be marginal. The business must also employ U.S. citizens.
I have an E-2 visa, will my children have to leave the U.S. when they turn 21?
Yes, because they will no longer be considered dependents at this age. Thus they will not be permitted to remain in the U.S. unless they apply for, and receive their own visa.