Three Factors that Impact whether your investment amount will be considered “substantial”

An E-2 visa is a visa that can be issued to nationals of certain countries who have invested a substantial amount of capital to start or purchase a business in the United States that will ultimately hire U.S. workers.  A very common question from clients is how much they must invest in order for their investment to be considered “substantial.”

While applicants often look for a single dollar figure of how much they should spend to get an E-2 visa, there are three factors that can greatly impact whether your investment is considered substantial.  These three factors are discussed below.

1. What Type of Business is it? The Proportionality Test

The regulations governing the E-2 visa do not specify any particular amount that would be considered substantial, rather the assessment of whether an investment is substantial is based on whether you have invested a substantial amount in proportion to the total cost of establishing the enterprise. This means that what is considered substantial will vary based on the type of company you are starting or purchasing. If your company has high startup costs (for example a manufacturing company) you would need to invest a significantly higher amount than if you were starting a service-based company that has much lower startup costs. However, if you are investing in a company with low startup costs you must invest a significantly higher percentage (ideally 100%) of the cost to start the business, whereas if your startup costs are significantly higher (eg, millions as opposed to thousands) you may be able to invest a lower percentage and still have this qualify as substantial.

It is important that you provide supporting evidence to demonstrate what the startup costs are for your specific type of business. Including market or industry reports, trade association statistics, articles from industry publications or other objective evidence showing startup costs for your type of business can strengthen the application.

You can find out more about how much you have to spend for an E-2 visa by clicking here.

2. How Strong is Your E-2 Case? The Strength of the Rest of your Case

Another factor that is important in answering the question of how much is required for your investmentis the strength of the rest of your case.  That is, if you have a lower investment amount but you have strong factors in your application such as employees, contracts or letters of intent from clients, letters of support from local business organizations such as the Chamber of Commerce, and strong expenditures that have a close nexus with the business (eg, inventory), you will be in a better position to counter the negative impact of a low investment amount.

3. Where are You Applying for the E-2 Visa?– Which Country You are Applying at or Are you Applying through USCIS

Although the regulations do not specify that any particular amount must be spent to show the investment is substantial, some Consulates are friendlier than others towards lower investment amounts. For example, we have had several approvals for investments under $100,000 with USCIS and at the Consulates in Toronto, Frankfurt, Rome, and London (Past results do not predict future outcomes). These Consulates and USCIS process many E-2 applications and if the E-2 investor can make a strong case that what they have invested is substantial and they meet all the other E-2 requirements, the visa application may be approved even with an investment as low as $50,000. That being said, any application with an investment amount under $100,000 is a very risky E-2 visa application and may not even work at these Consulates.  Our experience, as well as anecdotes from clients and colleagues, suggests that other Consulates, such as ones in France and Argentina, are known to want higher investment amounts that are at least $150,000 or above. Consular officers have significant discretion over whether to grant the E-2 visa and their interpretation of the E-2 requirements can change over time so it is a good idea to hire an attorney who regularly practices in this area and is familiar with different Consulates’ procedures. Also, a Consulate that may be E-2 friendly (or hostile) in the past can change. For example, many applicants who filed E-2 visa applications in London 10 years ago reported a very different (much more difficult) process than today.  Normally you will be applying for the E-2 visa at the Consulate in your home country, so it is important to understand the preferences of that Consulate to the extent possible. Please find a video on this topic here.

The assessment of whether your investment will be considered substantial depends on many factors. If you are considering an E-2 Visa, contact Scott Legal, P.C..  For more information on this and other immigration Visas click here.  You can also call us at 212-223-2964 or email us at iscott@legalservicesincorporated.com.

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