General

Nationals of countries that have treaties of commerce with the United States may qualify for an E-2 Treaty Investor visa if they have made, or are in the process of making, a substantial investment in an enterprise in the United States. 

The E-2 category allows companies or high net worth individuals to, in essence, invest their way into the United States.  Through innovative legal analysis and advice, the L-1 and E-1 visa can also be used as a method of investing your way into the U.S. as well, but no non-immigrant visa is truer to such intent than the E-2.

Requirements

• The investor, whether an individual or a company, must be a national of a designated treaty country
• The U.S. business must not be undercapitalized
• The investment must be sufficient to ensure the ongoing operation of the business
• The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise
• The investment must be in an operating business as opposed to an investment in property, stocks, bonds, accounts, etc.
• The investment and anticipated income from the investment must be substantial
• The investor must have control of the funds 
• A substantial part of the investment must have been made prior to the applicant applying for the E-2
• The investment capital must not be secured by the assets of the business
• The applicant must be coming to the U.S. to develop and/or manage the business
• The applicant need not be the actual investor, but he or she must serve as a high level manager, executive, or individual with highly specialized and essential skills within the company.

What Constitutes an “Investment”?

Capital at Risk

The capital that was, will be, or is in the process of being invested in the U.S. must be “at risk” in the commercial sense.  Investment capital is at risk when it is being invested for the main purpose of turning a profit, the capital is subject to partial or total loss if the enterprise is not successful, and the capital is not secured by an asset belonging to the enterprise.

In Control of Capital

The investor must have control of the funds and thus be able to ensure that the capital will in fact be invested in the U.S. enterprise as claimed.

Irrevocable Commitment of Capital

The capital that will be invested in the U.S. enterprise must be irrevocably committed to the enterprise.  Therefore, the applicant must guarantee that the investment capital will in fact be allocated to the U.S. enterprise once he or she enters the United States as a Treaty Investor.  Various measures can be used to prove that the capital will in fact be used for the U.S. business, including, but not limited to, holding the funds in an escrow or trust account and providing USCIS with proof of same.

 What Constitutes an “Enterprise”?

Active and Ongoing Business Operations

An active enterprise is an ongoing business with actual operations.  There are no specific labor requirements pertaining to the E-2, nor must a company be run pursuant to any particular regulations other than that mandated by the U.S. jurisdiction in which the enterprise is located.  However, simple investments in property, securities, bonds or any other idle passive income generating asset and/or investment vehicle, will not in of itself qualify one for an E-2 Treaty Investor visa.

Capacity to Generate Substantial Income

The enterprise must be one that has the current or future capacity to general a substantial amount of continuous income.  Though there is no set timeline, the anticipated income potential of the U.S. enterprise, or at least substantial revenues from the operation, should be realized within 5 years upon your entry into the United States as a Treaty Investor. 

E-2 status will not be granted for those who are entering the U.S. to develop and direct an enterprise that does not have the capacity to generate significantly more than enough income to provide an adequate living for the Treaty Investor and his or her family.

What Constitutes a “Substantial” Investment?

The federal regulations do not set out a minimal amount of capital that qualifies as a “substantial” investment.  However, the regulations do give the following guidelines on what immigration officials will consider substantial in regards to the amount of the investment:

• the capital must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
• sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
• of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Length of stay

An E-2 visa holder may be admitted to the U.S. for an initial period of not more than 2 years.  However, requests for extensions of stay may be granted every two years and there is no limit on the amount of times one may extend their stay.   Thus, since there is no limit on the number of extensions, as a Treaty Investor you may stay in the U.S. indefinitely.  However, since the E-2 visa is a non-immigrant classification, it is intended for a temporary stay in the U.S. 

Accompanying Spouses 

The accompanying spouse of a Treaty Investor may work in the United States upon receiving an Employment Authorization Document. 

E-2 Visa Countries

The following countries have treaties with the United States that allow qualifying nationals to apply for Treaty Trader status:                                                                                                   

Ife S. Ashabo, B.A., J.D., F.L.C. 

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