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E-2

  • Overview
  • Requirements
  • Filing Process
  • Common Questions & Answers

Overview

An E-2 Visa is available for foreign nationals who wish to live in the U.S. to develop and direct the operations of a business.  An E-2 Visa is a great option for those who want to start a business.  In order to qualify for the E-2 visa, applicants must meet specific requirements outlined in the requirements section below.

Requirements

There are 6 key requirements for the E-2 Visa:

1. You Must Be National of A Treaty Country

The E-2 visa is only available to foreign nationals from other countries that the U.S. has a Treaty with. There is a list of countries that the U.S. has established a Treaty with for your reference.

2. You must be coming to the United States to invest in a new or existing enterprise.

An E-2 investment is defined as the investor's placing of capital, including funds and other assets, at risk with the objective of generating a profit. Your investment may be for the purpose of establishing a new business or purchasing a pre-existing business. In either case, you must demonstrate that the capital you are investing is substantial.

3. Your investment must be in a bona fide enterprise and may not be marginal.

A “bona fide enterprise” is one that is a real, active commercial business which offers services or goods for profit.  The business cannot be an idle investment such as undeveloped land or stocks held by an investor who has no intent to operate and develop the business.

A marginal business is one that will not generate more than enough income to provide a minimal living for you and your family or to make a significant economic contribution.

4. You must be in possession of the funds you will invest and the funds must be committed to your business.

You must show that the capital you invest is committed to the business and the funds are subject to loss if the business fails. The funds you invest must also be your own and the invested funds must be substantial - considering the type and nature of the business. For example, a service oriented business may require less capital than a car manufacturing business.

5. You must be able to provide the source of your funding.

You must show a clear and legitimate path regarding the source of the capital you will be investing. You must also demonstrate that the funds you are investing have not been obtained through any unlawful means.

6. You must be coming to the United States to develop and direct the enterprise.

You must show that you will develop and direct the investment the business by demonstrating ownership of at least 50 percent of the business, or by possessing operational control through a managerial position.

Application Process

There are two ways you can apply for an E-2 visa:

Applying for an E-2 Visa While in the U.S. (Change of Status)

If you are in the U.S. on a visa (eg. H-1B or F-1), you can file a petition to change status to an E-2 Visa with the United States Citizen and Immigration Service (USCIS).  You will file the I-129 form and complete the E-2 visa supplement.  This petition requires extensive documentation and you should work with an experienced attorney to fulfill all of  the E-2 visa requirements.

If your petition is granted, you will be “in E-2 Status” rather than having an E-2 “visa” as the change of status does NOT permit you to reenter the country the way an E-2 visa would.  E-2 status is typically granted for a 2-year period.

If you have dependents that are also in the U.S. that are dependents on your visa (eg. H-4) where you want to change their status, you must also file Form I-539.


Applying for an E-2 Visa at a Consulate (An E-2 Visa)

If you are outside of the U.S., you must file a DS-160 and complete a DS-156E supplement. The consulate may impose some additional specific procedural requirements.  The visas are typically granted from between 2 & 5 years and you are permitted to leave and enter the U.S.  If you have dependents, separate DS-160 applications must be completed for them.

In summary, if you applied E-2 visa as a change of status, the time period will generally be 2 years.  If processed at a consulate, the visa can be valid for up to 5 year. E-2 Investors can get an E-2 derivative visa for spouse and children under 21.  The spouse can get work authorization but the children cannot. All parties may attend school in the U.S.

Common Questions & Answers

Can I get a Green Card with E-2 Visa?

No, an E-2 visa is a non-immigrant visa and does not lead to a Green Card. It is generally approved for a 5-year period and as long as the business is still in operation you can renew the E-2 visa.

If you qualify for another green card category (eg. EB-5) you should consult an experienced immigration attorney to explore the best way to apply for the green card.  This can be a tricky area as the temporary intent aspect of the E-2 Visa makes applying for a green card difficult.

 
Do I have to hire U.S. employees in Order to Get an E-2 Visa?

There is no required number of U.S. workers that have to be hired to work in the business. Depending on the type of business, it may be reasonably necessary to employ some employees for the operation of the business. The 5-year business plan should provide additional information regarding employees the business is planning to hire.

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