Executive Summary
Who can Apply for an E-2 Visa in Melbourne?
Australian nationals are eligible for treaty investor visas—called E-2
visas—which allow them to enter the U.S. to manage a business they own in the
U.S. or work as a specialized worker for an Aussie-controlled business in the US. If
your home residence is located in one of the following areas, your E-2 application
will be processed at the U.S. Consulate in Melbourne:
- Northern Territory
- South Australia
- Tasmania
- Victoria
The application package must be prepared in accordance with the guidelines set by the US Consulate in Melbourne and submitted electronically. Our services include preparing the application package for our clients in accordance with these requirements.
You can visit the U.S. Consulate’s website at U.S. Consulate General in Melbourne.
You can contact our US immigration lawyers in Australia for further assistance.
E-2 Visa to Manage Your U.S. Business:
In order to qualify for the E-2 investor visa to manage your company in the U.S., you
must fit within the detailed requirements laid out in the U.S. immigration laws. In
short, the essential elements that must be met in order to qualify for the visa are:
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you must be the holder of an Australian passport (or the holder of a passport
from one of the other countries eligible for E-2 visa),
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the U.S. business is at least 50% owned and controlled by Australian nationals (or the U.S. company is at least 50% owned by an Australian company),
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you have already invested a ubstantial amount of money/assets in the U.S. business or are in the process of doing so,
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the business is for-profit (non-profits/charities do not qualify),
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the business has a capacity to bring in more revenue than just to support you and your family (i.e. you will employ U.S. workers),
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you will be an active Manager/Executive for the U.S. business, and
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you satisfy the Consular officer that you intend to leave the U.S. after your visa expires.
For detailed information about the requirements for an E-2 investor/manager visa, please click here: Starting a Business in the United States: E-2 Investor Visas For Australians (General Guidelines)
E-2 Visas for Specialty Workers for Your U.S. Business:
In order to bring over a specialized Australian worker to work in your U.S. business,
the following basic elements must be met:
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you must extend the worker a job offer that matches their education and experience,
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you must offer them a fair wage (see the link below for more information),
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the U.S. business is at least 50% owned by Australians and Australians are actively developing and directing the U.S. company, and
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you must convince the Consular officer that a U.S. worker cannot easily and immediately perform the job you are offering the Aussie national.
For detailed information about the requirements for an E-2 specialized worker visa, please click here: Bringing Over Australian Nationals to Work in your Australian-Owned US Business: the E-2 Essential Employee Visa (General Guidelines)
For a free assessment of whether you qualify for an E-2 visa, please e-mail us or call our office in Australia (+61 2 9156 1032).
Applying for an E2 Visa in Melbourne
| Step |
Description |
How |
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1. Prepare Business Plan
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The business plan is probably the single most important part of an E-2 and E-1 visa application. It is the “backbone” of the application package.
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There are various business plan preparation services.
It is CRITICAL the plan is worked on in conjunction with and reviewed by an experienced E2 visa lawyer.
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2. Fund Application
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You need to evidence that “substantial” funds have been placed “irrevocably at risk” and that they properly fund the business.
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Escrow can be a compliant E-2 structure when drafted correctly. FAM guides that funds or assets must be committed to the investment and the commitment must be real and irrevocable. FAM explains that even where a transaction is conditioned on visa issuance, it can still be a solid commitment when the assets are held in escrow for release or transfer once the condition is met. (9 FAM 402.9-6(B)).
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3. Prepare E-2 Visa Application
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The business plan and other relevant evidence needs to be collated into an application package that meet
the requirement of the US Consulate in Sydney.
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Different consulates have different guidance for the package needed for an E-2 Treaty Investor Visa application. Official E-2 Treaty Investor Visa guidance is available here. While an experienced E2 immigration lawyer can provide more information the U.S. Department of State Foreign Affairs Manual (9 FAM 41.51)
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4. Complete Form DS-160.
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Nonimmigrant Visa Electronic Application (DS-160) form
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Guidance for completing for DS 160 is available from the US State Department.
Most E-2 visa applicants have their application, including form DS 160 prepared and filed by their immigration lawyer.
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5. Submission of E-2 Visa Package.
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You or your lawyer can submit your complete application by e-mail to: [email protected].
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Your application must be in PDF format and be of not more than 100 pages (not including the application forms) with a maximum file size of 9MB and be properly tabbed and formed to consular requirements.
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6. Pay your E-2 visa application fee.
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Visa application fees are listed here and at the time of writing are USD
205.
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Create a user profile online and
pay the Machine Readable Visa (MRV) fee for yourself and any accompanying family members. Follow the step-by-step instructions provided at the U.S. Visa Information Service for Australia website.
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7. Wait for Appointment
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Within fifteen (15) days of receipt of your application the US Consulate in Sydney will contact you and authorize you to schedule an appointment.
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Schedule appointment on-line upon consular authorization to do so.
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8. Visa Interview and Visa Issuance
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Attend visa interview at US consulate. If your visa is issued you will have to pay the visa reciprocity fee. At the
time of writing the fee for an Australian National is USD 5,592.00. Current Fees are posted on-line.
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Surrender your passport at consulate for stamping of E2 visa.
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D&A Strategy: Use of Escrow in E-2
Many Australians are surprised to learn that escrow can also be used in business start-up cases. In those cases, the funds needed to finance business operations are placed into escrow and spent as the business needs them.
In this way funds do not have to be spent in advance of E-2 visa issuance. HOWEVER, in these cases the escrow (trust) agreements need to be carefully drafted and the escrow account administered by a law firm or licensed escrow administrator.
FAM 402.9 6(B)
Case Study: Melbourne Biotechnology Company Expands to the U.S. Through an IP-Focused E-2 Treaty Investor Visa
Industry Background – Life Sciences in Melbourne
Melbourne is widely recognized as Australia’s leading life sciences and biotechnology hub. The city’s biomedical precincts, research hospitals, and pharmaceutical innovators contribute billions to the Victorian economy and support thousands of highly skilled professionals.
Within this environment, biotechnology companies frequently develop valuable proprietary intellectual property — including therapeutic formulas, diagnostic assays, regulatory documentation, and commercialization frameworks — that form the foundation of international expansion.
Client Overview
Client: XXXXBioTech Pty Ltd
Location: Commercial biomedical precinct, Melbourne, Victoria
Industry: Biotechnology and Diagnostic Assays
XXXXBioTech is a Melbourne-based biotechnology company specializing in proprietary peptide-based diagnostic assays for age-related and metabolic diseases. The company had successfully completed early-stage validation trials in Australia and developed strong interest from U.S. research laboratories and private healthcare partners.
To capitalize on U.S. demand, the directors decided to establish a wholly owned U.S. subsidiary and pursue an E-2 Treaty Investor Visa.
Strategic U.S. Expansion Model
Rather than building an entirely new operation from scratch, XXXXBioTech structured its U.S. expansion around the transfer of its most valuable asset — its proprietary intellectual property.
The U.S. entity was established to:
- Commercialize VitaBioTech’s diagnostic assays in the United States
- Enter into research and clinical partnerships
- License technology to U.S. laboratories
- Develop distribution relationships within the U.S. healthcare market
Because Australia is an E-2 treaty country, the principal shareholder qualified to apply for the E-2 visa as an investor establishing and directing the U.S. enterprise.
E-2 Investment Structure – Majority Allocated to Intellectual Property
Total Investment: Approximately USD $520,000
| Investment Component |
Amount (USD) |
| Transfer and exclusive U.S. licensing of proprietary IP package (assay formulas, lab protocols, regulatory dossiers, trademarks, software systems, manufacturing specifications, know-how, and commercial documentation) |
$360,000 |
| Laboratory equipment and validation materials |
$75,000 |
| Professional fees (legal, accounting, regulatory, business formation) |
$45,000 |
| Lease deposit and office/lab setup |
$25,000 |
| Initial U.S. payroll and operating reserves |
$15,000 |
| Total Investment |
$520,000 |
Intellectual Property as the Core E-2 Asset
The central feature of this E-2 case was the structured transfer (and exclusive U.S. licensing) of XXXBioTech’s proprietary intellectual property from the Melbourne parent company to the U.S. subsidiary.
The IP package included:
- Proprietary peptide assay formulations
- Validated laboratory methodologies
- Clinical data and supporting documentation
- Regulatory compliance frameworks
- Brand assets and trademarks
- Manufacturing and quality control systems
- Customer pipeline and commercial strategy documentation
A formal licensing and valuation framework was prepared to substantiate the commercial value of the IP. This demonstrated that the U.S. entity was not speculative or marginal — it possessed immediately deployable, revenue-generating assets.
The remaining capital allocation ensured the business was fully operational, with equipment, premises, and the ability to hire U.S. personnel.
Operational Launch in the United States
Following incorporation and investment:
- The U.S. subsidiary secured commercial premises in a major biotech cluster.
- Laboratory equipment was installed to support validation and demonstration testing.
- Commercial discussions commenced with U.S. research laboratories.
- The company began hiring U.S. support personnel.
The Melbourne founder relocated to the United States under the E-2 visa to direct operations, oversee partnerships, and expand commercial activity.
Visa Outcome and Business Positioning
The application demonstrated:
- A substantial investment with the majority committed to high-value intellectual property
- A real, operating U.S. enterprise
- Non-marginal business activity with revenue potential
- Active direction and development by the E-2 investor
- Capacity for U.S. job creation
By structuring the investment around a carefully documented IP transfer, XXXXBioTech established a strong foundation for both E-2 visa approval and long-term U.S. market growth.
Davies & Associates in Melbourne
With our Regional Office in Singapore, Davies & Associates has always had a strong presence in Australia.
In Melbourne we are located at:
Frequently Asked Questions (FAQ): Applying for a U.S. E-2 Treaty Investor Visa in Melbourne, Australia
Is Australia an E-2 Treaty Country?
Yes. Australia is a treaty country under the U.S. E-2 Treaty Investor program, and Australian nationals can apply if they make a substantial investment in a U.S. enterprise they will develop and direct.
What Is Considered a “Substantial Investment” for an E-2 Visa?
There is no fixed minimum dollar amount. Under 9 FAM 402.9-6(D), the investment must be substantial in relation to the total cost of the enterprise, sufficient to show the investor’s commitment, and adequate to support the probability the business will succeed. (This is assessed using the proportionality test and the overall facts of the case.)
Can Intellectual Property Count as an E-2 Investment?
It can—if structured correctly and documented. Under 9 FAM 402.9-6(C), the investment must be the investor’s funds or assets placed “at risk” in a commercial sense. IP may support the investment showing when it is transferred or exclusively licensed to the U.S. entity, properly valued, and tied to real operating activity. In the Melbourne biotech case study, the U.S. expansion was built around a documented IP transfer and exclusive U.S. licensing package, forming the majority of the investment.
Does the E-2 Business Need to Be Operating Before Visa Approval?
Yes. Under 9 FAM 402.9-6(B), the enterprise must be a real and operating commercial enterprise—not speculative or idle. In practice, this means the business is formed, funds are committed and at risk, and the operation is ready to commence (often with premises, equipment, vendors, and launch-ready proof).
What Is a “Marginal Enterprise” and How Do You Avoid It?
Under 9 FAM 402.9-6(E), an E-2 enterprise cannot be marginal—meaning it must have the present or future capacity to generate more than minimal living income for the investor and family. Applicants typically show credible revenue projections, market demand, and U.S. job creation. In the Melbourne biotech example, the plan emphasized commercialization, partnerships, and U.S. hiring capacity, supporting non-marginality.
Can I Apply for an E-2 Visa Through the U.S. Consulate in Melbourne?
Yes. Melbourne-based applicants generally file through the U.S. consular process (including DS-160 and DS-156E, plus a full E-2 supporting package). Appointment availability and processing times can vary, so it’s common to prepare a complete, decision-ready submission.
How Long Is the E-2 Visa Valid for Australian Investors?
Validity depends on reciprocity and consular issuance practices, but E-2 visas are often issued for multi-year validity periods, and each entry typically grants a period of stay of up to two years. As long as the business remains compliant and operational, E-2 status can generally be extended. Authority: 9 FAM 402.9.
Can My Spouse and Children Come With Me on an E-2 Visa?
Yes. Spouses and unmarried children under 21 can generally obtain E-2 dependent status. Spouses are typically eligible to apply for U.S. work authorization, and children may attend school. Dependents do not need to share the investor’s nationality. Authority: 9 FAM 402.9-9.
Can an Australian Startup Founder Qualify for an E-2 Visa?
Yes—if the investment is substantial relative to the startup’s costs, the business is real and operating (or imminently operating), and the enterprise is not marginal. Startups usually succeed when they show credible market demand, operational readiness, and hiring/revenue trajectory. The Melbourne biotech case illustrates how validated IP and structured commercialization can strengthen an E-2 filing.
Does the E-2 Investment Have to Be Cash?
Not necessarily. E-2 investment is evaluated based on capital placed at risk, which can include certain equipment, inventory, binding commitments, and (in appropriate cases) properly documented IP licensing/transfer structures—so long as the investment is irrevocably committed and tied to the enterprise’s operation. Authority: 9 FAM 402.9-6.
What’s the Difference Between an E-2 Visa and an EB-5 Visa?
The E-2 is a nonimmigrant treaty investor visa tied to ownership and operation of a U.S. business. EB-5 is an immigrant category (green card track) with statutory minimum investment thresholds and job creation requirements. E-2 is often used for faster market entry; EB-5 is used when permanent residence is the objective.
What Are the Most Common Reasons for E-2 Visa Refusals?
Common issues include insufficient or non-committed investment, funds not placed at risk, a business that is not yet real and operating, a marginal enterprise analysis problem, unclear ownership/control, or weak documentation—especially around IP valuation and transfer terms when IP is central to the investment. Authority: 9 FAM 402.9-6.
How Long Does an E-2 Visa Application From Melbourne Take?
Timelines vary by case complexity and consular scheduling. Many applicants spend several weeks preparing a complete E-2 package (especially in regulated industries), then proceed based on appointment availability and consular processing.
Can the E-2 Visa Lead to a Green Card?
The E-2 does not directly convert into permanent residence, but many E-2 investors later pursue immigrant options depending on eligibility (such as EB-1C, EB-2 NIW, EB-5, or family-based pathways). Planning the business structure early can preserve future options.
Why Are IP-Focused E-2 Strategies Common for Melbourne Businesses?
Melbourne has a strong concentration of biotech, medtech, research, and innovation-driven companies where proprietary IP is often the core commercial asset. When the U.S. entity is built around a properly documented IP transfer or exclusive U.S. license, it can demonstrate immediate operational value, commercialization readiness, and non-marginal revenue potential. The attached Melbourne biotech case study is an example of this strategy in practice.
About the Authors
Mark I Davies, Esq.
Chairman of Davies & Associates; focused on E visa strategy and complex consular filings.
Mark I Davies, Esq. JD, University of Pennsylvania Law School, Licensed with the SRA (SRA ID: 384468) in the UK, Member Law Society of England & Wales, MBA, Wharton School of Business. Top 10 Investment Visa Lawyer, Licensed (USA), Georgia State Bar. AILA Member.
| Area |
Details |
| Education |
JD, University of Pennsylvania Carey Law School | MBA (Finance), The Wharton School, University of Pennsylvania | Chartered Accountant (ICAEW) |
| Financial Training |
Completed Analyst Training Program at a major international bank | Chartered Accountant background with professional training in financial analysis and reporting |
| Legal Practice |
Admitted to practice in Georgia (USA) | Registered Solicitor with the Law Society of England & Wales | Former CMBS lawyer at one of the world's largest international law firms |
| Immigration Track Record |
15+ years advising HNW investors | Zero denials for clients advised on source-of-funds compliance in EB-5 | Hundreds of successful EB-5 cases globally |
| Recognition |
Named a Top 25 EB-5 Immigration Attorney by EB5 Investors Magazine (2018–2023) |
| Professional Engagements |
Lecturer/trainer for other lawyers at AILA, ACA, University of Pennsylvania Law School | Frequent speaker at global investment immigration conferences |
Visas for Australian residents are processed in a US consulate. The US embassy in Canberra does NOT process visa applications. US Consulates in Australia are located at:
Covers: Capital Territory and New South Wales.
Address
Level 10, MLC Centre, 19-29 Martin Place, Sydney, NSW 2000
Phone
Office: 1300 139 399
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