The E-2 visa classification is an optimal classification for foreign nationals starting a business in the United States, or purchasing an operating business in the US. The E-2 classification permits the visa holder to temporary reside in the US for two year periods and may be renewed indefinitely as long as the E-2 company meets certain requirements. A common question we get from potential clients is “When can I apply for the E-2 visa?” The answer to this question depends on how close the E-2 enterprise is to opening for business at the time of filing the application.
A full set of E-2 visa requirements can be viewed by clicking here.
What does Real and Operating Mean?
The E-2 classification requires the E-2 company to be a real and active commercial or entrepreneurial enterprise, producing some service or commodity. The Company must be a for-profit undertaking, and cannot be a speculative investment, such as the purchase of a parcel of undeveloped land. For applicants purchasing an active and ongoing business, which already has employees, files taxes and makes revenue, this requirement is easy to prove. (You can often prove this by showing the tax returns of the company over a 2 year period) For startups, especially those providing consultancy services or software as a service, this requirement may be more difficult to prove. Generally speaking though, the start-up must be far enough along so that it is ready to start operations.
What Types of Things Show a Real & Operating Enterprise for a Start up?
Before submitting an E-2 visa application, the applicant should have made all the requisite expenditures needed to run the investment enterprise. For example, if the E-2 enterprise is an auto repair shop, the applicant should have secured garage space, purchased the necessary tools, equipment, and ideally hired a mechanic prior to applying for the visa. This will enable the applicant to show that the only thing the E-2 company needs is the Investor to run it. While the business does not have to be fully operational at the time of the application (for example, you may apply for the visa while the company’s leased space is being renovated to fit the business’s needs), the company should have made significant progress in opening its doors.
For service-oriented startups, the same general principle applies. The applicant should have purchased all of the requisite equipment, software subscriptions, and leased office space prior to submitting the E-2 application. For software companies, the product should be in some form of development prior to applying. The applicant should be able to demonstrate some interest in the software that it is developing, such as downloads or preorders for the software or subscriptions for its services. The key question is whether your E-2 company will be ready to operate (i.e. providing services) if you were granted the visa. One of our clients who opened a gym was asked by an examiner what he would see if he walked in the front door. She said that the equipment was purchased, the lease was signed, the employees were hired and basically the only thing the company was just waiting for her to arrive. This was exactly what the officer wanted to hear and her E-2 visa was approved for 5 years.
To find out more about the new rules or other investor visas, 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 firstname.lastname@example.org.
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