E-2 Investor Visas
The E-2 visa is a temporary work visa available to foreign nationals who are investors, executives, managers, or essential workers. The E-2 visa holder must be entering the U.S. to perform temporary services for a US company. The business in the US may be newly-created or an existing one (e.g., purchase of an already-operating business).
There is no analogous immigration category, although the E-2 visa and business can serve as a steppingstone for either the EB-13 or EB-5 immigrant categories. The visa can also be extended indefinitely — for 10, 15, or more years — making this a very attractive visa option.
The E-2 visa is a temporary work visa available if the following criteria are met:
- There is a treaty between the United States and the country of which the investor is a national;
- The investor has at least a 50% share of the business;
- The business in the United States is a real and operating commercial enterprise, with an investment already made or in the process of being made;
- The business can be new or purchased, but the investment must be substantial and more than marginal (solely to earn a living);
- The investor will develop and direct the enterprise;
- The visa applicant will either develop and direct, supervise, or engage in essential functions; and
- The applicant intends to depart the US when the E-2 status terminates.
How to apply for an E-2 visa?
Unlike other work visas, there is no petition process with USCIS. The DS-160 application is filed online and the applicant attends a visa interview at the consulate or embassy abroad. This means that the process can be completed relatively fast. Unless there is a country-specific visa validity restriction, the visa can be granted for up to 5 years, with Customs and Border Protection usually granting a two-year stay upon arrival. The spouse and minor children are eligible for dependent visas. The spouse is able to work in the US after receiving employment authorization.
What are some potential problems and issues to consider with an E-2 Visa?
- Any funds used to purchase the business must be from a lawful source, and the consul may request documentation to ensure the legal source
- The investment must be irrevocably committed to the business, so an escrow arrangement conditioning the release of funds to the seller of the business on the issuance of the visa is permissible
- The business cannot be at the planning stage alone; operations must have already commenced or to be at the stage of commencement
- There is no magic number to assess whether the investment amount will be viewed as “substantial” or be considered not marginal, but any investment of less than $100,000 is likely to trigger additional scrutiny
- Goods, equipment, patents may be considered as part of an investment
- The applicant for a visa must be qualified for the position, so the consul may raise questions about the background and ability of the applicant (e.g., housewife) to undertake the duties
- Applicants who have been denied visas in the past may have their intentions questioned when applying for an E-2 visa, particularly about his/her intention to leave the US
- Applicants who have been subjected to extensive security clearances in the past may also have problems
- Applicants who may have “jumped the gun” by starting to work in the enterprise (or perceived as starting to work) while located in B status in the United States may encounter a displeased consul
- Different approaches and different adjudication standards at consular posts around the world can be problematic: e.g., what may be considered a “substantial” investment by the US Embassy in London may not be deemed “substantial” at a consular post in a different country
- Applicants who have “essential skills” (e.g., chef in a restaurant) may have their importance to the enterprise questioned by the consul
- Applicants who applied for a B visa to visit the US for pleasure and seek to change status to E-2 after arrival may have their initial intention challenged by USCIS or the consular officer
- E-2 extensions are subject to scrutiny to ensure that the terms and conditions of the initial E-2 were complied with
How does W&A help?
The stakes for E-2 applicants are quite high: the last thing you want after making a substantial investment and committing time and energy to a US business is to have a problem receiving a visa. Consular discretion is substantial and refusals based on Section 214(b) for failure to meet the requirements are not uncommon. Worse, the consul may enter a finding of a willful, material misrepresentation under Section 212(a)(6)(C)(i). We help our clients avoid common problems and traverse the potential minefield that an application for an E-2 visa can be. We provide advice and legal support throughout the process — from the beginning when a potential business is being considered, through the business plan preparation and commencement of operations, to the visa application itself. We professionally prepare E-2 visa applications and applicants for their interviews. We can also provide a second opinion — perhaps you are not confident in your lawyer or just would like to receive an objective assessment of a successful E-2. We can also deal with problems that may arise with CBP. Even if your E-2 visa has been rejected by the consular officer, we may be able to assist in overcoming that denial. If a waiver is appropriate, we can help. Please contact us so that we may discuss how we can assist you.