E-2 Treaty Investor: Key Visa Requirements
The E-2 visa is often the most appropriate nonimmigrant visa for investors purchasing an existing business or establishing a new business in the U.S. The documentation that must be submitted to the American Embassy in support of these applications is quite extensive and subject to frequent change.
If you are a British citizen and currently residing in the UK, you may be eligible to apply for an E-2 visa. If you are a citizen of another country you may also be eligible, if your country has an appropriate treaty with the U.S. (Note: British citizens residing overseas, e.g. in Spain, are generally NOT eligible for E-2 visas.)
To qualify for an E-2 visa, the key requirements are:
- Substantial Investment: The investment must be substantial. This is not defined in dollar terms, but is related to the amount normally required to purchase or develop a similar existing business or establish a new business. Investments are normally required to be in a minimum amount of $100,000 to $150,000, but can be less, depending on the type of business. It is acknowledged, for instance, that it takes far less capital to start up an internet business, than a manufacturing facility. However, it may be difficult to get approval for an E-2 visa if small amounts of capital are invested, as the consular officer may determine that insufficient monies are at risk. Some appropriate financing may be possible, however, it is not recommended that more than 25% - 30% of the purchase price be financed for investments in the range $100,000 to $500,000. The investment monies must be irrevocably committed to the purchase and, if purchasing an existing business, should be placed in a special escrow account. Funds in a business or personal bank account are normally insufficient to qualify the investor for an E-2 visa (see Investment Amount).
- Non-Marginal Investment: The investor must demonstrate that the business in which they are investing will generate more than enough income to support the investor and their family, and will contribute to the economy, usually by employing US workers (see Business Profitability).
- Active Investment: The business must be a fully operating business because the investor, as the applicant, must prove that they will be actively engaged in developing and directing the business. Passive investments, such as ownership of real estate or stocks and bonds do not qualify.
- Investor Must Be the Source of Funds: The invested funds must be those of the investor. Personal loans from relatives or friends can be considered part of the investment as long as the business is not collateral for the loan. Gifts of funds for the investment are also permissible.
The E-2 visa regulations currently allow for two co-investors to invest in and obtain visas to work in the business. This can be, for example, husband and wife, father/mother and son/daughter, or two unrelated business partners. The two co-investors may both be eligible for E-2 visas. E-2 investors are only permitted to work in their own business. They are not permitted to work in any other business. The spouse of an E-2 investor may apply for work authorisation once in the U.S., which will allow him/her unrestricted employment eligibility.
Dependent children under 21 will normally receive E-2 dependent visas, which will be valid until their 21st birthday. Dependent children are not eligible to apply for employment authorization to work in the business or elsewhere, but they are permitted to attend school or university or simply accompany their parents. After reaching the age of 21, they will have to qualify for visas in their own right in order to stay in the U.S. They may be eligible for an F-1 student visa, if attending college. The F-1 visa would enable them to remain in the U.S. for the duration of their course of study; or they could become investors in a business and qualify for E-2 investor visas in their own right. If they are university graduates, they may be eligible for an H-1B visa if they receive a job offer as a professional. H-1B numbers are, however, subject to an annual restriction.
Elderly or disabled dependents can sometimes accompany an E-2 visa holder. The dependent must apply for a B-2 visa, and is generally permitted to stay in the US with the investor as long as the investor remains in valid E-2 status. Their B-2 visa application can be submitted concurrently with the E-visa application.
E-2 visas can be issued for up to five years. It is not unusual, however, for the American Embassy in London to issue an E-2 visa for two or three years upon initial application. On renewal the visas are often granted for five years, as long as the Embassy is satisfied that the business continues to meet the E-2 eligibility criteria.
All E-2 visas must be renewed at the American Embassy in London, and all applicants over 14 years old must appear at the Embassy for a short interview.
If an individual has a criminal conviction or prior immigration violation, this may effect one’s eligibility for an E-2 visa. This information must be disclosed on the visa application and the individual will need to submit a UK police certificate as well as a Memorandum of Conviction obtained from the Court in question. Visa eligibility will depend on the nature of the conviction or offence. This information should be disclosed during the initial consultation in order for the attorney to make a preliminary determination as to the effect of the conviction or offence on visa eligibility.