E-2 Investor Visa

Overview/Description

An E-2 Visa is a Visa Classification that is available for foreign nationals who wish to live in the U.S. to develop and direct the operations of a business.  The business can be large or small and an E-2 Visa is a great Visa option for those who want to start a business.  In order to qualify for the Visa, applicants must meet specific requirements outlined in the requirements/eligibility section below.

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Requirements/Eligibility

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

1.      You Must Be National of A Treaty Country

The E-2 Investor Trader Visa is only available to people from the countries that the U.S. has a Treaty with.  Many Western countries are on the list but there are also countries from Africa, Asia and the Middle East on the list.  A complete list of the countries on the list can be found by clicking here.  Also find more information on E-2 countries by clicking here.

2.      You Must Have Invested or Be Actively in the Process of Investing

In order to satisfy this part of the test, you must fulfill three requirements.

i)Show Legitimate Possession and Control of the Funds

You must invest funds that you have obtained from a lawful means.  While dollar for dollar accounting is not required, you must prove to the Government that you either saved the money, were given the money as a gift or legitimately earned the money.  There are various forms of proof that will satisfy this requirement including tax returns, bank statements, investment accounts & more.  For some countries, this can be problematic if records are not readily available or the country is subject to a high degree of corruption.  When I applied, I showed the government 10 years worth of tax returns, my current W-2, my 401K investment statements and my bank statements. Find our more information on E-2 source of funds by clicking here.

See an article that discusses the question: Can the E-2 investment be made from a loan or gift? by clicking here.

ii)All Funds Invested are “At Risk” & Irrevocably Committed

All of the assets invested must be personal assets subject to risk of loss and this really means that you actually have something to lose.  Loans are fine but you must be on the hook if there is a loss and this requirement forces you to sign contracts and/or spend money prior to the approval of the Visa.  When I applied, I signed a one-year office space lease and would have been required to pay approximately $24,000 even if the Visa was not approved.  At risk money does include credit card debt or other loans as long as those debts are not secured by business assets or in the name of a limited liability business.  This provision is one of the “scarier” provisions related to an E-2 Visa.

iii) You Must Be Close to The Start of Business

While you cannot accept money from clients or “do business” until the Visa is approved, you must be close to starting your business.  The idea here is that the U.S. government does not want to approve Visas for people who “may” set up a business in the U.S. or who have a “desire” to start a business.   As such, your business must be at the start up ready phase.  This means you should have a signed lease, your business bank account should be set up, you should have a website, and you should have purchased what ever you need to get the business up and running.

3.      You Must Be in a Position to “Develop & Direct” the Business With Skills

You cannot get the E-2 Visa unless you are the one that is going to direct and run the business. Also, you must have the appropriate skill set such that the Government has faith that the business will be viable. For example, you would likely not have much success getting and E-2 Visa if you wanted to open a restaurant if the only experience you had was eating in a restaurant.  Normally, your educational background and experience should suggest that you will be in a position to make the business a success.

4.      Your Investment Must Be Substantial

The U.S. Government does not have a predetermined amount that they consider substantial.  As such, your investment could be as low as $15,000 or as high as millions.  I invested around $50,000 but only spent $13,000 for equipment, furniture and other items.  I also deposited $35,000 in my business account as operating working capital.  You should note that idle cash sitting in a business account is NOT considered an investment but the government will consider a reasonable amount of working capital as part of an investment. This small investment was sufficient because I was setting up a service oriented business which does not cost much to set up.  If the business was say a car manufacturer, the required investment amount would have been substantially more.   You should ensure that you keep records of all of your expenditures as the government will want to see them. Find out more about how much you must invest for an E-2 visa by clicking here.

5.      Your Investment & Business Cannot Be Marginal

This means that the business cannot be set up so that it provides a means of living just for yourself and family.  You can demonstrate a business is not marginal by putting together a business plan that shows growth over a 5-year period or by showing that you plan to hire employees in the future. Click here to read more about What does E-2 Visa Marginality mean? Read more about developing an E-2 Visa business plan by clicking here.

6.      You Must Intend to Return to Your Home Country After Expiration

This is not a difficult test to meet and all you must do is sign a document that indicates you plan to return home once your visa expires.  Unlike many other visas you do not have to show any ties to your home country like a home there.

Application Process

There are two ways you can apply for an E-2 visa and these are described below.

  1. 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).  The I-129 form you file is the same form that you file for many other non-immigrant visas (eg. H-1B) and you would also complete the E-2 visa supplement.  This petition is a document intensive application and you must provide documentation to support all of the elements outlined in the E-2 visa requirements.   If your petition is granted, it is best to think of yourself as “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.  Finally, 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 an I-539. Click here to find out more about deciding whether to apply for an E-2 visa at a consulate or through a change of status.

  1. 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 this long application is completed online.  You must also complete a DS-156E supplement.  The exact instructions of how you apply for the visa are usually outlined on the website of the relevant consulate and the documentation that you must provide is generally the same as the documentation you would provide if you were filing in the U.S..  That being said, 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. whenever you like.  If you have dependents, separate DS-160 applications must be completed for them.  Click here to find out more about deciding whether to apply for an E-2 visa at a consulate or through a change of status.

A Few Things To Consider When Deciding:

If you have been granted a change of status and leave the U.S., you must qualify for an E-visa at a consulate before reentering. This does NOT mean that you simply show the consulate your I-797 approval notice like with most visas but rather you must reapply for the E-2 from scratch and submit all supporting documentation as if the application were to be a new one.  If your application is approved, an E-2 Visa is added to your passport and you will be able to leave and reenter the U.S. at will.

If you are in E-2 status as a result of a change in status, it will not speed up adjudication or otherwise expedite your E-visa application at a consulate.  In fact, many consulates believe that these adjudications should exclusively be done at consulates and as such completely discount any USCIS findings.  There are cases where visas that were approved by USCIS were denied when the applicant applied or sought a renewal at a consulate.

Consular E Visas can be issued for 5 years where USCIS will only issue E-2 status for 2 years.  If a business is a start-up business and a change of status is issued for 2 years, the marginality requirement of an E-2 visa will primarily be assessed based on the business plan.  Also, later if you changed status and leave the country, as outlined above  you will have to apply for the visa at the consulate and in this situation the consulate will have 2 years worth of actual business data that could be used against you if your business has not taken off as fast as you thought it would.  This problem could be avoided if a 5-year E-2 visa was issued as you may have more time to get the business up and running.

Even though the standard for E-2 visas is the same worldwide, some consulates are easier than others to get E-2 visa approvals.  For example, even though there is no set amount of money that an investor must spend, some consulates will not approve E-2 visas unless over $100,000 is spent.  For others the threshold amount is even higher.  Also, most attorneys agree that USCIS applies the standards fairly consistently (in a relative sense) and some argue that USCIS approval is easier than consular approval.  At the end of the day though, a business owner is going to have to apply at a consulate at some point.

See more reasons when deciding between processing an E-2 visa at a consulate or through a change of status by clicking here.

How long does the Visa last for?

If processed 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 but the actual time will depend on the reciprocity agreement between countries and the decision taken by the consulate. See more detail on E-2 Visa length and E-2 visa reciprocity by clicking here.  See also an article that discusses whether an E-2 visa “leads” to a green card by clicking here.

How are Family Members Treated?

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..

Other Considerations or Related Articles

Articles about the E-2 Visa

Common Questions & Answers

Click here to see additional E-2 Questions and Answers.

Here are the top E-2 Visa questions and answers.

1.     Does an E-2 Visa Lead to A Green Card?

No.  An E-2 Visa is a non-immigrant Visa and does NOT lead to a Green Card.  While it does not lead to a green card, it is often approved for a 5-year period and as long as the business is still in operation you can renew the Visa indefinitely.  If you qualify for another green card category (eg. EB-5) you should consult an 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.

2.     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 but usually the business should employ at least some employees in the U.S. as reasonably necessary for the business to operate.  If no workers are hired, the investment may be considered as a business that is set up only to support the E-2 applicant and his/her family. (The legal term for this is “Marginal” and it is not permitted).  You do not have to hire the workers immediately and your 5-year business plan should detail exactly when you plan to hire the employees.

3.     Is an E-2 Visa the Visa where I have to Invest 1 Million dollars ($1,000,000) and hire 10 employees?

No. The E-2 Visa is often confused with an EB-5 Visa. The EB-5 Visa is a completely different Immigrant (Green Card) Visa and you can read more about and EB-5 Visa by clicking here.  In contrast to an EB-5 Visa, an E-2 Visa does not require a specific amount of Investment and does not have a specific number of employees that you have to hire.

4.     Can I get an E-2 Visa with a low amount of Investment? Is there a minimum amount of an Investment?

There is no required Investment dollar amount.  A common myth is that a minimum of $100,000 is the required but Scott Legal, P.C. has obtained approval for investments with as little as $15,000 spent and $35,000 in a bank account as working capital.  If your business is a service business (eg. a consulting business) the investment that is required will be much lower than if your business is a capital-intensive business (eg. car manufacturing plant).

5.     Can I borrow money to start the business?

Yes. Unlike the EB-5 Visa, borrowing money is fine for this Visa as long as the business is not overly leveraged.

6.     Is there a particular type of business that I have to start or buy?

No. Any for profit active business type is fine. (eg. drug store, law firm, consulting agency, car dealership, hair salon, etc.).

7.     Do I have to Make a Business Plan to Get an E-2 Visa?

Yes.  A 5-year business plan is required and the business plan is a key element that immigration officials consider when they review your Visa petition.  To find out more about how to make an effective business plan click here.

8.     Does an Investment in Real-Estate Qualify for an E-2 Visa? Can I buy a Home and get an E-2 Visa?

No.  The E-2 Visa can be obtained by either purchasing an existing business or creating a new business in the United States and the business must be an “active” business.  This excludes passive investments like real-estate or owning stock.  Your business must also make money and as such not-for-profit enterprises are excluded.

9.     Can I bring my family and can they work in the U.S.?

Your husband or wife can get an E-2 visas and are eligible to apply for an “Employment Authorization Document” (referred to as an EAD) to work in the United States after obtaining E-2 status.   He/She can work in any field and this is a significant advantage of an E-2 Visa as many other non-immigrant visas, like a TN Visa and an H-1B Visa, do not allow a spouse to work in the U.S.. Find out more about considerations with spousal E-2 visas by clicking here.

10.  Which countries are eligible to get an E-2 Visa?

The E-2 Investor Trader Visa is only to people from the countries that the U.S. has a Treaty with.  Many Western countries are on the list but there are also countries from Africa, Asia and the Middle East on the list.  Israel was just recently added to the list.  A complete list of the countries on the list can be found here.

11.  How long does it take to get an E-2 Visa?

An E-2 Visa is a very document intensive petition.  In addition to a number of government forms, the Visa requires the submission of a binder full of documentation that is often quite lengthy.  Once the documentation is prepared, the processing time depends on the processing time at the consulate that is located in the applicant’s country.  This could range from 3 weeks to 3 months (or longer).

12.  How much does it cost?

Legal fees for an E-2 Visa will generally be $5,000 for most Visas.  Filing fees usually will not exceed $500.

13.  Do I need a lawyer?

Yes.   Like most Immigration law, the E-2 regulations are complicated and you must demonstrate to immigration officials that you have met all of the legal elements.  In addition, the documentation requirements for an E-2 Visa are quite extensive and a legal brief must be written linking all of the elements of the Statute to your case.

See our E-2 brochure by clicking here.  See all the Requirements in the Video below.