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?

By September 21, 2015February 15th, 2017E-2 Visa, Immigration, Investor Visas

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.

To find out more about our immigration and business services, contact Scott Legal, P.C.


Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at

This website and blog constitutes attorney advertising.  Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed.  Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results.  Each case is different and must be judged on its own merits.

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. 


  • Vipul Naik says:

    Q- With E2 visa, am I allowed to travel back and forth from Canada to US? If yes what it the minimum stay required in US? Also if this travelling is possible on a weekly basis? Also I was checking the link you posted in above comment regarding your fees is this in USD or CDN dollars? Also what would be the minimum requirement for I-94?
    Being a Canadian citizen and located in Toronto, can I still hire you guys? If yes then in this case do I have to apply in US or Toronto US consulate?

  • Patrick Ritchie says:

    I am in the process of setting up a Restaurant in Orlando FL, i am at the lease stage of the property and i plan after three months in the business to apply for an E2 visa. i also plan to travel back and forth during the set up stages. please give me your advise. thanks. If required your services would Orlando out of your reach and a cost amount.

    • IanScott says:

      Hello and thank you very much for contacting us. We know that the decision to start a business in the U.S. is one that brings many questions to the forefront and we are here to help. This firm was founded on an E-2 visa so we understand much of what you are concerned with. Our goal is to assist you so that you can realize the dream of growing a business in the U.S.. I have attached a link to our E-2 visa brochure below that describes our services and fees and you can see from the brochure that we can also help you with your business plan and your business entity set-up.

      E-2 Visa Brochure

      We would like the opportunity to help you and welcome the chance to set up a one hour consultation with one of our lawyers who regularly processes E-2 visas. This lawyer will be able to answer all of your questions and can give you valuable information so that you can make informed decisions. Our consultations can be arranged based on your convenience and can be done over the telephone, via Skype, or in person.

      Our consultation fee of $250 will be refunded to you if you end up hiring us and I have attached the link to set up a consultation below.

      We hope you decide to give us the opportunity to assist you and please let us know if you would like to set up a consultation.

      Kind regards,

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