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Welcome to our E-2 visa page. Here, you will find answers to many common questions about this entrepreneurial visa. We have created a comprehensive resource designed to provide valuable information. Please note that the content provided is for informational purposes only and does not constitute legal advice. If you are considering applying for this visa, we encourage you to schedule a consultation. Attorney Cabrera will review the specifics of your case and address any questions you may have. 

GENERAL

An  E2 treaty investor visa allows you to live in the United States so you  can own and run a US business. This visa is an excellent option for  entrepreneurs. You can start a new business or acquire an existing one.  Neither requires a track record. This visa is available to  nationals of a treaty country (a country with which the United States maintains a treaty of commerce  and navigation). Certain employees of such a person or of a qualifying  organization may also be eligible for this classification. E2 visas are  highly regulated.

The  E-2 visa holders are initially allowed a maximum stay of two years.  Requests for extension of stay can be filed and may be granted for  periods of up to two years each. Notably, there is no maximum limit to  the number of extensions an E-1 non-immigrant may be granted, as long as the alien maintains the intention to depart the U.S. when their status  expires or is terminated.

ADVANTAGES

• Turn your investment in your US business into a long-term visa.
• Great for creating your own business in the USA.
• Unlimited renewals, as long as the business is operating properly
• No requirement to start a related business in your home country.
• Modest investment may pave the way to unlimited stay in the USA.
• Spouses and unmarried children under 21 years of age may apply for E  Dependent Visas in order to accompany the main visa holder. 
• The spouse  of an E-2 Visa holder may apply for an employment authorization at the  Department of Homeland Security (DHS). 
• Dependent children of an E-2 Visa  holder are not allowed to work in the United States. They are allowed,  however, to go to school in the United States.

REQUIREMENTS

1.      You Must Be National of A Treaty Country: The  E-2 Investor Trader Visa is only to people from the countries that the  U.S. has a Treaty with.  Many Western countries are on the list but  there are also countries from Africa, Asia and the Middle East on the  list.  Israel was just recently added to the list. If you are a U.K  national, you must also be a resident of the British Isles in order to  be eligible.

2.      You Must Have Invested or Be Actively in the Process of Investing: In order to satisfy this part of the test, you must fulfill three requirements.

a) Show Legitimate Possession and Control of the Funds: You  must invest funds that you have obtained from a lawful means.  While  dollar for dollar accounting is not required, you must prove to the  Government that you either saved the money, were given the money as a  gift or legitimately earned the money.  There are various forms of proof  that will satisfy this requirement including tax returns, bank  statements, investment accounts & more.

b) All Funds Invested are “At Risk” & Irrevocably Committed: All  of the assets invested must be personal assets subject to risk of loss  and this really means that you actually have something to lose.  Loans  are fine but you must be on the hook if there is a loss and this  requirement forces you to sign contracts and/or spend money prior to the  approval of the Visa.  At risk money does include credit card debt or  other loans as long as those debts are not secured by business assets or  in the name of a limited liability business. 

c) You Must Be Close to The Start of Business: While  you cannot accept money from clients or “do business” until the Visa is  approved, you must be close to starting your business.  The idea here  is that the U.S. government does not want to approve Visas for people  who “may” set up a business in the U.S. or who have a “desire” to start a  business.   As such, your business must be at the start up ready  phase.  This means you should have a signed lease, your business bank  account should be set up, you should have a website, and you should have  purchased whatever you need to get the business up and running.

3.      You Must Be in a Position to “Develop & Direct” the Business With Skills: You  cannot get the E-2 Visa unless you are the one that is going to direct  and run the business. Also, you must have the appropriate skill set such  that the Government has faith that the business will be viable. For  example, you would likely not have much success getting and E-2 Visa if  you wanted to open a restaurant if the only experience you had was  eating in a restaurant.  Normally, your educational background and  experience should suggest that you will be in a position to make the  business a success.

4.      Your Investment Must Be Substantial: The  U.S. Government does not have a predetermined amount that they consider  substantial.  As such, your investment could be as low as $50,000 (very  rare) or as high as millions.  The actual required investment amount  depends on a number of factors including the Consulate you are filing  at, the business and the other parts of your application.  You should  note that idle cash sitting in a business account is NOT considered an  investment but the government will consider a reasonable amount of  working capital as part of an investment.  While for a service oriented  business a smaller investment can be sufficient at some Consulates, if  the business was say a car manufacturer, the required investment amount  would have been substantially more.   You should ensure that you keep  records of all of your expenditures as the government will want to see  them.

5.      Your Investment & Business Cannot Be Marginal: This  means that the business cannot be set up so that it provides a means of  living just for yourself and family.  It also means that the business  will be viable and will be able to continue operations going forward.  You can demonstrate a business is not marginal by putting together a  business plan that shows growth over a 5-year period or by showing that  you plan to hire employees in the future.  Letters of intent or other  documents that show that the E-2 business has prospects or prospective  clients is also helpful.

6.      You Must Intend to Return to Your Home Country After Expiration: This  is not a difficult test to meet and all you must do is sign a document  that indicates you plan to return home once your visa expires.  Unlike  many other visas, you do not have to show any ties to your home country  like a home there. Your spouse and family can also get E-2 visas and  your spouse can get full work authorization.

PROCESS: USCIS VS. CONSULATE

If  you are in the U.S. on a visa (eg. H-1B or F-1), you can file a  petition to change status to an E-2 Visa with the United States Citizen  and Immigration Service (USCIS).  The I-129 form you file is the same  form that you file for many other non-immigrant visas (eg. H-1B) and you  would also complete the E-2 visa supplement. If the petition is  granted, it is best to think of yourself as “in E-2 Status” rather than  having an E-2 “visa” as the change of status does NOT permit you to  reenter the country the way an E-2 visa would.  E-2 status is typically  granted for a 2-year period.  If you have been granted a change of  status and leave the U.S., you must qualify for an E-visa at a consulate  before reentering. This does NOT mean that you simply show the  consulate your I-797 approval notice like with most visas but rather you  must reapply for the E-2 from scratch and submit all supporting  documentation as if the application were to be a new one.  If your  application is approved, an E-2 Visa is added to your passport and you  will be able to leave and reenter the U.S. at will.

If you are  outside of the U.S., you must file a DS-160 and this long application is  completed online.  You must also complete a DS-156E supplement.  The  exact instructions of how you apply for the visa are usually outlined on  the website of the relevant consulate and the documentation that you  must provide is generally the same as the documentation you would  provide if you were filing in the U.S..  That being said, the consulate  may impose some additional specific procedural requirements.  The visas  are typically granted from between 2 & 5 years and you are permitted  to leave and enter the U.S. whenever you like.  If you have dependents,  separate DS-160 applications must be completed for them.

FREQUENTLY ASKED QUESTIONS

1. How much do I have to Invest to get an E-2 Visa?

This  is the number one E-2 Visa question that we receive. To obtain an E-2  visa, the investment must be “substantial” in relation to how much it  costs to set up the business. If the total amount required to set up a  business is low (eg. a service oriented business such as a consulting  company) then you may be able to invest as low as $50,000 to obtain an  E-2 visa. If the cost to start a business is high (eg. a car  manufacturing plant), then an investor would be required to invest  hundreds of thousands of dollars to obtain an E-2 visa.

You  should also keep in mind that investment amount requirements vary  drastically by Consular posts and some posts would not accept an  application with an investment amount of $50K. Some raise the bar to as  high as $250,000 for any E-2 visa application.

2. Can I use a home office for an E-2 visa or do I have to rent office space?

While  a lease is not a requirement in the E-2 visa Statute, a commercial  lease is a very important part of the E-2 visa and we almost always  recommend that the investor obtain a commercial lease for office space.  Generally speaking, as a rule a home office could jeopardize an  application as a Consular officer may question the seriousness of the  business. This is especially the case if the application is border-line  or if your investment amount is low. The same rule applies to virtual  offices. When selecting your office space, you do not need a closed door  office but you should sign a lease where you have a fixed desk with  enough space to seat all applicants and/or any employees.

3. What can be included in the E-2 investment amount?

You  can include any legitimate business expense in your E-2 investment  (even for expenses made outside of the U.S.) but some expenses are  clearly better than others. Some standard good expenditures include;  legal fees, lease payments (you can only include what you have actually  paid and not the payments through the term of the lease), equipment,  furniture, website set-up, staff, and inventory. You are also permitted  to include a small amount of working capital (money in a business bank  account) in the investment amount and usually up to $100,000 is  acceptable depending on the nature of the business. You may also include  the value of any intellectual property as long as you can objectively  assign a value to it. 

4. Do I have to spend money before the E-2 visa gets approved and what happens if the E-2 visa is not approved?

Yes.  The E-2 visa is a visa for investors who are at the final stages of  starting a business and who are ready to open the doors. While an E-2  investor takes a risk that the E-2 visa may not be approved, this cannot  be avoided as the government will not issue a visa to those merely  “thinking” about setting up a business. As such, in order to get the  visa you must put funds at risk and spend money before you are approved.  You will also be required to transfer funds (working capital) to a U.S.  bank account. If you are buying a business or signing a lease, you can  include a provision that indicates that you are not obligated under the  terms of the agreement if the E-2 visa is not approved. If the E-2 visa  is denied we always tell our clients to ask the Consular officer for  reasons why the visa was not approved. An E-2 visa denial does not  prevent the applicant from applying again at a later time once the  issues causing the denial have been addressed.

5. Can my spouse work in the U.S. if I get an E-2 Visa? What about my kids?

Yes.  Your spouse can work in the U.S. and is permitted to work anywhere or  start his/her own business. Children can remain on an E-2 visa until  they reach 21 and can go to school but are not permitted to work.

6. How long will it take for my E-2 visa to be processed?

It  depends. Timing at a U.S. Consulate depends on the Consulate and the  time of year. For example, the Consulate in Mexico  can take anywhere  from one week to 90 days to review a file and call an applicant for an  interview. Each Consulate has a different process and timing really  depends on that process and how busy the Consulate is.

7. How long will an E-2 visa be issued for?

An  E-2 visa can be issued for up to 5 years but the actual amount of time  that it is issued depends on the discretion of the consular officer that  adjudicates your petition and the country reciprocity. Each country has  a different maximum amount of time that an E-2 visa can be issued for.   Regardless of how long the visa is issued for, each time an E-2  applicant enters the U.S. he/she is granted two years in E-2 status.

8. Does an E-2 Visa lead to a Green Card?

No.  An E-2 visa is not a green card and it does not lead to one. Like any  other visa though, if you are eligible for a green card based on one of  the categories (eg. marriage or EB-5), you are permitted to apply for  the green card. You should keep in mind that an E-2 visa is a  non-immigrant visa so if you apply for a green card while on an E-2  visa, you may have difficulty reentering the U.S. on your E-2 visa. That  being said, many investors use their existing business to apply for an  EB-5 green card once they have the $500,000 or $1,000,000 to reinvest in  the business.

9. Can I buy real-estate and apply for an E-2 visa? Does a real-estate investment qualify for an E-2 visa?

No.  The E-2 Visa can be obtained by either purchasing an existing business  or creating a new business in the United States and the business must be  an “active” business. This excludes passive investments like  real-estate or owning stock. If the buying and selling of real-estate is  a business then you may qualify but you would have to have a large  number of properties that you manage (eg. greater than 25).

10. Do I have to hire U.S. workers right away to obtain an E-2 Visa?

No.  You will ultimately have to hire U.S. workers but this is not required  in year 1 or year 2 (or even year 3) but rather your ultimate plan has  to be to hire U.S. workers over time and prior to your next renewal.  Most start-up E-2 visas are approved based on the business plan and we  rarely see plans that suggest hiring in year one.

*The information contained herein is intended for general informational purposes only. It is not intended for legal advice. You must consult with an attorney to obtain specific, comprehensive legal advice. Government processing times may change at any time. For current USCIS processing times contact USCIS directly.