Can I Just have the Intention to Start a Business and get an E-2 Visa? What Does Real and Operating Mean for an E-2 Visa?

An E-2 visa can be a perfect visa option for an entrepreneur that wants to start a new business in the U.S.. The applicant must be from a Treaty country and must also invest in the U.S. and ultimately create U.S. jobs. To find out more about the E-2 requirements click here.

One question that often comes up when processing E-2 visas is: How “ready” does the business have to be to get an E-2 Visa? Specifically, many clients wonder whether it is enough to show the government that they “intend” to start a business rather than showing the government that they have already started a business. The clear answer is that the business must be close to the start of operation (or already operating) in order to obtain an E-2 visa. The government has made it clear that the visa is not for those intending to start a business and is reserved for those in the final stages. That is, for an E-2 visa the E-2 business be “Real and Operating.” When one of our E-2 investor clients who opened a gym attended her Consular interview, the officer asked her what he would see if he were to visit the gym right then. She answered that the space was rented, the equipment was in place and everything was ready to go. The only thing that was still required to start the E-2 business was the investor. This was the exact answer the consular officer expected to hear and her E-2 visa was approved.

There are a number of factors that show that a business is real and operating. One key factor is that the investor has actually made the investment in the business. Many ask the question of whether they can show that they have the funds available to invest or simply transfer the funds in to a business bank account and the clear answer is no. The bottom line is that funds must actually be expended and put at risk (meaning you cannot get the money back) BEFORE the E-2 visa is granted. Uncommitted funds in a bank account do not meet the investment part of the E-2 requirement and cash generally does not show that a business is real and operating.

Real and operating can also be demonstrated by showing a combination of the following:

• A legal entity established and registered with the Department of State in the State of operation
• A signed commercial lease. A home office generally does not show that a business is real and operating and a commercial lease adds a significant amount of legitimacy to the E-2 visa application.
• A completed company website
• Company marketing material developed – eg. Business cards, brochure, advertising
• Employee or Contractor information – eg. employment contracts, W-2’s or 1099’s
• A business bank account set up
• Tax ID for company
• Licenses obtained (eg. liquor license or license to operate the business)
• Trademark or other intellectual property filings
• Contracts with suppliers or clients

Real and operating is not defined by any one item in the above list but rather a totality of the facts and circumstance approach is adopted. An officer will review all of the information provided and make a determination of whether or not the company is far enough along to merit the issuance of the E-2 visa.

For more practical or legal advice contact Scott Legal, P.C.. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support. Call 212-223-2964 or email info@legalservicesincorporated.com for a consultation.

Ian E. Scott is a Harvard Law School Graduate, lawyer and author of Law School Lowdown: Secrets of Success from the Application Process to Landing Your First Job.  Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and currently runs his own law firm Scott Legal, P.C. specializing in Immigration Law & New Business set-up. 

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