An E-2 visa is an investor visa that allows an entrepreneur to start a business, invest in a business or purchase a business in the United States. The visa can be renewed indefinitely as long as the E-2 requirements are met and the business continues to operate successfully and hires U.S. workers.
One of the main requirements of the E-2 investor visa is that the applicant invest a substantial amount into the business. There is no set figure for what is considered substantial and U.S. consulates have taken different approaches with respect to what they consider to be a substantial amount. To determine whether an investment is substantial the reviewing officer will use the proportionality test, meaning they will look at how much it costs to set up a certain type of business and determine if the investment is substantial in relation to the total startup cost for that type of business. You can read more about the substantiality requirement and how large an investment needs to be by clicking here and here.
If you are starting a new business your investment will be calculated based on the amount of money you spend on startup costs, such as office rent, business registration, equipment, inventory and legal fees. A reasonable amount of funds in the business bank account to be used for business expenses can also be included in the investment amount. If you are purchasing a business the investment amount will be the purchase price. You can also include any supplementary expenditures you made to support the business, such as licensing fees or repairs and renovations to the business premises.
What if you made an investment into your business several years ago? Can you use this past investment to get the E-2 visa?
In some instances a business may be operating for some time and the question arises as to whether expenditures made in the past for the business can be included in the E-2 investment amount. While this is a less common scenario than a start-up or business purchase, you may still qualify for an E-2 visa as long as you can demonstrate that your investment was substantial and the investment funds came from a legitimate source and from your own personal funds. (expenditures made from revenue associated with the business cannot be included). In circumstances where an investment was made several years in the past, the key is to identify how much it costs to set up the relevant business and provide documentation of the prior investment. Ideally the documentation would include a complete trail of the investment, including receipts, invoices and bank statements that show the funds being transferred to the business and spent on business expenses.
What if you made an investment with items you purchased years ago before you started the business? Can items purchased years ago be included in the E-2 investment amount?
Expenditures made from your personal accounts in the past may also be included in the E-2 investment amount and inventory or assets you purchased in the past can also be gifted to the business and counted as investment. The theory behind including these amounts in the E-2 investment amount is that the item is being donated or sold to the business so it constitutes and investment of the business. For example, we processed an E-2 visa for a wedding photographer who had $50,000 worth of equipment she had purchased years prior and she was able to include all of these in her investment amount. The older the expenditures, the less likely that they can be included in the E-2 investment amount.
For more practical information and legal advice on E-2 and other visas, contact Scott Legal, P.C. Call 212-223-2964 or email firstname.lastname@example.org for a consultation.
Kelly R. LeGrand Weiner, Esq. is the Managing Attorney at Scott Legal, P.C. She can be reached at 212-223-2964 or by email at email@example.com.
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