E2 Visa

Many investors are concerned about the meaning of a “substantial” investment.  Unfortunately, there is no magic number.  However, there are a few guidelines that officials look to when determining if you have made a substantial enough investment to warrant this visa.  They may look to determine whether the investment is enough to keep a business going and growing successfully.  In addition, they may review the total cost of the business then look at your investment to see if you’ve invested a substantial portion of the cost. (Keep in mind that the lower the cost of the business, the less they will take this factor into account.) E2 visas are good for three months to five years (depending on the country of origin) and can be extended for additional two-year periods of time.   There is no limit to the number of times someone may extend their stay in the U.S., but the visa holder has to always prove intent to leave the U.S. upon expiration of the visa.   The visa holder will have permission to only work “in the activity for which he or she was approved at the time the classification was granted.”

Good news for your spouse!  If you get an E2 visa and your spouse get a E2 derivative visa, he or she may apply for a work permit. Once that work permit is granted, your spouse is not limited in terms of where he/she works.

If you’re interested in starting a business or purchasing an existing business in the United States, the following will give you a little information about the best way to go about that process.  These are some of the most frequently asked questions when it comes to entrepreneurs in the US.

What are the Requirements for an E2 Investor Visa?

There are several requirements in order to apply for an E2 Investor Visa

You must be a national of a visa country. If you aren’t a national of one of these countries, you may try a different path to entrepreneurship in the US.

You must invest in a new or existing business in the US with the goal of making a profit.

Your investment in the new or existing business must be “substantial.” A “substantial” investment is not defined as a number, but is judged under totality of the circumstances.  The location of the business and the type of business will be considered.  That said, you should be sure that you can invest at least $30,000 in order to show substantiality.

Your investment should be in a “bona fide enterprise” and cannot be “marginal.” According to United States Citizen and Immigration Services (hereinafter USCIS), “bona fide enterprise” is one that can be defined as a “real, active commercial or entrepreneurial undertaking which produces services or goods for profit.” In other words, the business must be active on a day-to-day basis.  You must show more than just an investment waiting to mature.  For example, a simple real estate investment or a stock investment will likely not pass muster.

Additionally, the business must not be “marginal.”  The government is looking for a business that has “present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.” This is not a hobby business or a part-time business.  You should be actively working on the business and intending the business to be a full-time venture that will financially support you and your family.

You must have the funds to be spent, and the funds must be “irrevocably committed.” This means that you must be in possession of the money.  In addition, you must show that the funds have been spent or will be spent on the business.  (A purchase agreement may be a way to show that the funds will be spent, and receipts are a way to show the money has already been spent.)

You must be able to trace the money. In other words, you must be able to show that the money is yours – not investors’ or third parties. It goes without saying that you must also show that the money was not received as a result of criminal activities.

Your goal in coming to the US is to “direct and develop” this business. In other words, you need to show that you have the ability and capacity to “direct and develop” the business. This is typically demonstrated by showing that you have at least 51% ownership in the business.

QUESTIONS AND ANSWERS FOR E2 VISA

Can I work in other jobs while I am working in my E2 business?

You were granted permission to live and work in the US based only upon the business for which you applied. Therefore, you can work only on that business.  In fact, you should spend all of your working time investing in the business, since you are expected to provide for your family with the business and you must show that the business is not “marginal.”  If your business isn’t working when it’s time to renew the visa, you may have a problem.  The short answer – no.  You should focus your working efforts on the business.

Can my spouse work in the United States if he/she is here based on my E2 investor visa status?

Yes! Your spouse may apply for permission to work and will be allowed to work anywhere.

I’m planning on starting a non-profit in the US in order to help children. Can I apply for an E2 visa?

Although this is a wonderful undertaking, you will not be able to get an E2 Visa.  One of the main requirements for this visa is that the business is a “commercial enterprise” and must be for profit.  Non-profit organizations are therefore not eligible.

Can my children join me on an E2 Visa?
Yes! Your children under the age of 21 can come to the US with you.  However, once your children turn 21 or get married, they will need to change status or return to the country of origin.  A common change of status is to an F-1 visa (student visa).  After school is over, the child will need to change status again or return to the country of origin.  If you plan on bringing your children, please consider working out an immigration plan for them.  Because of the rules surrounding E2 visas, there are heart-breaking stories of kids who moved to the US at 6 months old and now at 24 need to return to the country of origin.  Do not let this happen to your child.  Speak to an immigration attorney about how to plan for your children’s future.

Should I apply for an E2 visa in the United States, or in my country of origin?

There are a lot of variables here, but generally, we recommend that folks leave the country and interview for the E2 visa at a US Consulate in the home country.  If you apply for the E2 visa through USCIS (here in the United States), you will have to apply again once you leave the country for any reason.  And, once you apply with the US Consulate, the decision is not based upon the USCIS approval.

This can be a bit confusing, so I’ll break it down a bit.  If you get an E2 visa in the United States, you will go through USCIS in order to get the E2.  USCIS is a division of the Department of Homeland Security.  USCIS determines whether you qualify for an E2; and if you qualify, your immigration status will change to E2 from whatever your status was.  The downside is that if you leave the country for any reason, you will need to re-apply for an E2 with the US Department of State.  This will happen at the US Consulate in a foreign country.  (In most cases, you would apply at the Consulate in your country of origin, but that is not a requirement.) The Department of State will make its own determination about whether you meet the requirements for an E2 visa.  Their determination has nothing to do with the prior USCIS determination.  So, if you get an E2 visa through USCIS and need to leave the US for an emergency, you won’t be able to return to the US and run your business until you are approved through the Department of State.  This could take weeks or months, depending on the facts of the case and the country in which you interview.  Or, in the worst case, your E2 may be denied.

What if I want to start an E2 business with another person?

There are a few requirements for business partners when filing for an E2 visa.  You must be able to show control and a substantial investment for the partner who is applying for the E2 visa.  Generally, this is done by having the E2 investor own 51% of the business.

Is it OK to have an American partner?

Yes. It is OK to have a US citizen or green card holder be a partial owner in the business.  But, the E2 investor should own 50% of the business — 51% is even better.

I’m a dual national.  How do I “pick” a nationality for purposes of the E2?

This can be a sticky situation.  Generally speaking, the consulate, when reviewing your packet, will look to the country most closely associated to your dealings with the E2 process.  This is definitely something to discuss with an attorney.

I’m interested in buying an existing business in the US.  Can I still qualify for an E2 Visa?

Yes! You can get an E2 visa for starting a new business or buying an existing business. Although new and existing businesses are both acceptable, how you show that you meet the E2 visa requirements is a bit different.   For example, you may need a business valuation expert letter when showing that you have “substantially invested” in a new business, since there is no way to prove how much it costs to run the new business. In an existing business, you won’t need that.  You should have documents from the previous owners showing the expenses and profits of the business.

Are there minimum employee requirements for an E2?

Yes and no.  There are no specific requirements, but there are expectations. In order to get an E2 visa, you need to show that this business is not marginal. One way you show that is by proving that you will make more than enough money for you and your family to make a living.  The idea here is that you will create jobs and wealth for the United States.   Statutorily, there is no set number of employees you must have.  However, if the adjudicators don’t believe that you will ever be able to employ others; or if you are applying for an E2 renewal and you haven’t employed others and aren’t going to employ others, you may not get the E2 visa.

I’m a free-lancer and I’d like to work from the US.  However, all I really need is a computer and reliable internet. Can I get an E2 visa?

Probably not. In order to qualify for an E2 Visa, you need to show a substantial investment. Even though you can spend $3,000 and get everything you need to run the business, this is not the type of thing the adjudicators are looking for in an E2 applicant.  They want to see that you will be growing the business and that the business is not marginal.  In addition, they want to see that you have commercial space to run the business.  In many cases, they will be looking for a lease agreement for commercial space.

I’m interested in US real estate.  Can I buy a property and get an E2 visa?

Maybe. It really depends on your intentions.  Are you planning on buying a single house or condo?  This will likely not pass muster. Are you guying two houses or condos? Again, this may not be enough to pass the “marginality” requirement and you may not be able to show an active, operating commercial enterprise.  But, are you interested in buying an apartment building with many units? You may have a shot at an E2 visa. As with all types of businesses, you’re going to need to show that this business is not marginal, that it is a real and operating enterprise and that you can make more than just enough for you and your family.

How long will the E2 via process take?

It depends.  When you decide to move forward with an E2 visa, we will send you a checklist. This list will have all of the documents you’ll need to provide in order to move forward.  Sometimes people get the information to us in a couple of weeks.  Sometimes it takes a couple of months.  Once we have the information and submit the information to the Consulate, the timeline depends upon that office. Some offices can review applications and set interviews within a couple of weeks.  Sometimes it takes a few months. Once you have the interview and are approved, you will have your visa in your passport typically within 5 business days.

I am in the US on an E2 visa.  How do I apply for a green card?

The E2 visa will never “turn into” a green card, and the E2 visa doesn’t help you get a green card.  That said, you may always change your status while legally in the US. Some things to consider: do you have any US citizen or US green card holder relatives? Is your spouse eligible for a green card? Are your children eligible for green cards? If the answer to any of these questions is “yes,” you may have a chance to get a green card. One word of warning — the E2 doesn’t allow the intent of staying in the US.  You must intend on returning to your country of origin.  So, if you are considering trying for a green card, you should speak with a lawyer first.

PROVING THE ELEMENTS OF AN E2 VISA

Am I a national of an E2 “treaty country”? And if so, how do I prove it?

This seems like an obvious question; and in many cases, the answer is obvious.  You can simply check the Department of State website to see if your country is on the list.  Your nationality is the country for which you have citizenship and a passport.  You prove this nationality by showing a passport or a naturalization certificate or similar document. Easy, right?

What about if you have dual nationality? As you may have heard, the US doesn’t really like “dual nationality.”  In fact, the United States doesn’t recognize it for its citizens.  But, the US can’t do much about the policies of other countries.  So, if you are a citizen of two or more countries, how do you show citizenship?  The answer may vary depending on the different countries. Typically, the government will look to the nationality used or connected with the E2 process. Let’s look at a couple of examples.

Example 1: Bobby from Brazil/Canada

Bobby the baker was born in Brazil.  He lived there until he was five, when his father got a job in Canada.  The family moved to Canada and Bobby became a Canadian citizen when he was 17, but retained his Brazilian citizenship. He now has passports from both countries.  At age 30, Bobby decides he wants to move to South Dakota to open up a bakery.  He comes to the United States on a B1/B2 visa in his Canadian passport to look for available space and get a few vendor contracts in line.

In this case, Bobby should be OK! Although Brazil isn’t on the “treaty country” list, Canada is.  Bobby used his Canadian passport to come to South Dakota.  He held himself out as a Canadian citizen.  Looks good.

But, what if Bobby did things a little differently?  What if Bobby came to the US using his Brazilian passport?  He took the same trip — he got space for the bakery, he got vendors lined up and returned to Canada. Yikes.  Now we have a problem.  According to Matter of Ogibene, “…nationality claimed or established by (the foreign national) at the time of his entry into the United States must be regarded, for purposes of section 214 of the Immigration and Nationality Act, 8 U.S.C. 1184, as his sole or operative nationality for the duration of his temporary stay in the United States.”  Bobby entered the US with a Brazilian passport.  Brazil is not a treaty country for purposes of E2 visas.  Even if Bobby leaves and returns to Canada before applying for the E2, Bobby needs to speak with an immigration lawyer.

What is an “investment” for E-2 purposes?

As discussed, in order to qualify for the E2 Visa, you must have invested or be in the process of investing in a business.  In order to show this investment, you must show the following.

You’re investing your money, and you have control of the money. 

Money earned or received legally will likely be included.  This means that you could’ve inherited the money, that you could have earned the money in another business or as an employee or that you could’ve won the lottery.  As long as the money is in your possession legally, you should be able to prove that it’s yours and that you have control over the funds.

In a simple example using “Bobby” the baker:

Bobby’s father, a baker himself, recently died and Bobby inherited $150,000.  This money is in Bobby’s savings account and he is using this money to invest in a bakery in South Dakota.  This works!

But what if Bobby’s inheritance isn’t so squeaky clean?

Bobby’s father made a living as an international jewel thief.  Unfortunately, during a shootout in a particularly intense heist, Bobby’s father died.   Bobby inherited $150,000.  It’s not clear that Bobby will be able to use this money.  It will be need to be traced to legal activities.

Your money or assets are at risk when invested.  The government wants to see that the money is spent and, if the business fails, the money is gone.  Essentially, they want you to have some “skin in the game.”

The simplest example of this is cash:

Bobby inherited $150,000 in cash from his father and invests all of it in a bakery in South Dakota.  This works!

However, there are more complex cases that can show risk as well.  If you take out a mortgage or secure a loan, you may be able to show risk.  It’s important that the debt is collateralized by your personal assets.  You cannot use money procured from loans collateralized by the business.  This isn’t risk as required by the E2.  You must show that your personal money or assets are on the line if the business goes south.

A couple of examples:

Bobby takes a second mortgage out on his home for $100,000 and uses those funds to invest in a bakery in South Dakota.  This works!

Bobby gets a loan secured by the projected future earnings of his new bakery in South Dakota.   This will not work.

Your money or assets are “irrevocably committed.” Essentially, you need to be in the process of investing.  “Mere intent to invest” isn’t enough here.  Money must have been spent.  The government wants to see that you are “all in.”  They don’t want contracts signed but no money spent.

In a simple case, showing irrevocable commitment will be easy:

Bobby has copies of cashed checks he wrote to purchase ovens, a commercial kitchen lease and a delivery van.  This works!

There are some instances where money hasn’t been spent, but still qualifies as “irrevocably committed:”

Bobby intends to buy an existing bakery in South Dakota.  Although he hasn’t actually released the money, the money is in an escrow account and will be released upon the condition of the E-2 Visa being issued.  This works!

What can and cannot be used to show an investment?

Leases and rental payments for location or equipment.  It’s possible to use leases and rental payments as investments in certain circumstances.  You can use all current and prior lease payments, whether for the location or for equipment.  However, you cannot use future lease payments or the value of the rented equipment to show investment.

Example:

Bobby rents a commercial kitchen in Yankton, South Dakota for $1,200 per month.  He has paid rent for January, February and March.  The lease is for two years.  He can include the January, February and March payments as investments, but he cannot include the next year and nine months of his lease payments as an investment.  BUT, if Bobby paid his lease up front, he can use that lease payment as an investment.

Here is another example of what can and can’t be used to show investment:

Bobby rents two commercial grade ovens for his Yankton, South Dakota bakery.  Each month, he pays $475 to use the equipment.  The ovens retail for $20,000 each.  Bobby may use all of the payments he’s made for the ovens, but he cannot use the retail value of the ovens to show investment.

Goods and/or equipment used for business purposes.  If you can show that you purchased something for the business, you can use the amount of money spent for those goods and/or equipment for investment purposes.  Obviously, the types of equipment and goods that may be used varies widely based on the business you plan to open.

So in a common example:

Bobby bought two commercial ovens for $40,000 and a delivery van for $25,000 for his new bakery in South Dakota.  He can show investment of $65,000.

But, what if Bobby bought the two ovens and a truck (instead of a delivery van)?  He can still show the $40,000 for the ovens, but the government may need a little more info on the truck.  Is he using the truck for the business?  Or is it for personal use?  This is where a lawyer comes in handy.  You will need to show that the truck is used for the business, not for personal use, in order to include it in the investment amount.

Types of intangible property.  In some instances, the value of intangible property, like copyright and trademarks or domains may be used as investment.  These types of properties are notoriously difficult to value, so this may be a challenge.  But, there are a variety of companies that value intellectual property and other intangible property; and you may be able to show value based on the value of contracts generated by this asset.

Bobby owns the domain BobbysBakery.com.  He bought this domain for $1,000 in 2001.  Last month, he went to a domain valuation expert and received a printed valuation at $2,500.  He built a website on this domain to market his new bakery in South Dakota.  He can likely use this $2,500 (in addition to the cost of the website) to show an investment.

I can prove an investment, but is it substantial enough?

When it comes to E-2 Visas, the “substantiality” requirement is always a concern.  There is no “hard line” number.  You can’t look anywhere and find that $50,000 is enough or that $100,000 is enough.  Showing this requirement is one of the reasons to hire a lawyer in this process.  It’s an art.  There are a few general guidelines, as we will discuss; but overall, the government will look at the facts of your particular case in order to determine if the substantiality requirement is met.

As I always say when speaking with new clients, put yourself in the reviewer’s shoes.  This is a person (not a lawyer or judge) who doesn’t know you or your business at all.  This person knows the requirements of E2, and he or she will be reviewing the documents simply to see if these requirements are met.  This person will be using their best judgment to determine if you are substantially investing in a bona fide business that is not marginal.  This person wants to see that this business has a chance to succeed, to be profitable and to sustain your life and your family member’s lives.  Perhaps most importantly, the reviewer needs to be convinced that you and this business will be contributing to the United States economy.  With this in mind, you can start to see what “substantial” investment may mean.

Luckily for investors, the government does share some information about what they may use to determine what is substantial.  Essentially, the government is looking for three things to judge the “substantiality” of the investment.  They will be looking to see that the investment is

(1)  “…Substantial in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;

(2)  Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and

(3)  Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise….”

In order to judge whether the investment is “substantial in relationship to the cost,” a proportionality test is used.  Essentially, this test compares “… (1) the amount of qualifying funds invested, and (2) the cost of an established business or, if a newly created business, the cost of establishing such a business.”

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