E-2 Treaty Investor visas are available to persons entering the US “solely to develop and direct the operations of an enterprise in which he has invested, or 85 is actively in the process of investing, a substantial amount of capital.” At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the US and the home country have a ratified bilateral investment treaty. Employees of the enterprise who are working in management, executive or “essential” positions are also eligible for the visa if the ownership breakdown meets the above test. Some of the most important requirements for an E-2 visa include the following:
- The investment is active, not passive.
- The investment must be substantial. While “substantial” defined, the Department of State uses a proportionately test to see if this requirement is met. The amount invested must be weighed against the total value of the enterprise for established enterprises or the amount considered necessary to set up a viable enterprise for new businesses. For small to mid-sized firms, “substantial” means the investment must be more than half the value of the enterprise. For service businesses, the test is whether the amount is adequate to establish a viable enterprise.
- The investment cannot be marginal. The State Department will look at whether the investment will generate more funds than just enough for the owner to make a living and whether the investment will create jobs.
- The E-2 visa applicant must have an intent to depart the US upon expiration of the visa. Unlike other nonimmigrant visa categories, however, this requirement can be met if the alien simply provides the consulate with a statement indicating this.
- The investor must manage the business and exercise a controlling interest in the business.
Applications for E-2 visas are made directly to the consulate and not through the INS unless the applicant is in the US in another visa status and seeks to change to an E-2 visa. Each consulate has its own version of an E visa questionnaire form and most require extensive documentation accompany the application. The length of time the visa will be issued is determined by agreements between the US and the Treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-2 status. Spouses and children of E-2s are entitled to visas as well. E-2 family members are not subject to deportation proceedings because they accept employment, but they will be considered out of status and ineligible to change status in the US. Furthermore, they would be subject to paying a large financial penalty for being out of status when it comes time to adjust to permanent residency. There are no restrictions on family members pursuing studies while in E-2 status.
The following countries have ratified investment treaties with the US and their nationals can apply for E-2 status:
- Argentina
- Australia
- Austria
- Bangladesh
- Belgium
- Bosnia
- Bulgaria
- Canada
- Cameroon
- China (Taiwan)
- Colombia
- The Congo
- Costa Rica
- Croatia
- Czech Republic
- Egypt
- Ethiopia
- Finland
- France
- Germany
- Grenada
- Honduras
- Iran
- Ireland
- Italy
- Japan
- Kazakhstan
- Korea (South)
- Kyrgyzstan
- Liberia
- Luxembourg
- Macedonia
- Mexico
- Moldova
- Morocco
- Netherlands
- Norway
- Oman
- Pakistan
- Panama
- Philippines
- Poland
- Romania
- Senegal
- Slovakia
- Spain
- Sri Lanka
- Suriname
- Sweden
- Switzerland
- Thailand
- Togo
- Tunisia
- Turkey
- United Kingdom
- Zaire
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