E2 Treaty Investor Visa

Benefits of E2 Visa?

The E2 Visa USA offers many advantages, including:


• No minimum amount of capital for investment. While USD 100,000 is recommended, investment can be USD 50,000 or less.
• Investment does not have to be cash.
• Ability to travel freely to and from the United States.
• Unlimited renewals, potentially for the rest of an applicant’s life.
• Ability for a spouse to work in the US for any employer.
• Option to purchase a businesses or business franchise.
• No minimum number of jobs to be created.
• Quick E2 visa processing times. Application is made directly at the consulate.
• E2 visas are "never denied”, they are “refused”.
• Potential tax benefits over permanent residents.
• Ability to transition to a Green Card at a later stage.

Why Every E-Visa Applicant Needs to Read FAM

All E visa applications are adjudicated by consular officers in US consulates outside the United States.

The Foreign Affairs Manual (“FAM”) contains the US State Department’s instructions to consular officers when adjudicating E visa applications. While supporting documentation requirements do vary by consulate, the FAM does not.

It is therefore worthwhile knowing the provisions of FAM. All E visa applications are adjudicated by consular officers in US consulates outside the United States.

Qualifying for an E-2 Treaty Investor Visa

You will need to prove to a consular officer that you meet each of the E2 visa requirements. For ease we have included the citation to FAM for each requirement.

1. You Must “Direct and Control” the Business

   9 FAM 402.9-6(F)
   
   The easiest way to document this is through 50% ownership of the E2 Business but alternatives do exist.
   
   You can also own less than 50% of a business owned by persons who share your E2 qualifying citizenship. Public companies are deemed to have the nationality of the stock market on which they are traded.
   
   Note: Applicants for the E2 specialist worker visa need to have the same nationality as the E2 business and are not required to make any investment.
   

2. National of an E2 Treaty Country

   9 FAM 402.9-4(B)
   
   You will need to be the National of an E2 Visa treaty country. A list of qualifying countries is maintained by the US State department.
   
   Because US treaties vary by nation there are differing E2 visa requirements for some countries.
   
   Generally, E-2 visa USA applicants who obtained in a qualifying country through a financial investment need to be “domiciled” in that country for a period of three years prior to becoming E2 visa eligible. This requirement has a number of exceptions and “work arounds”, follow this link to learn more.

3. Invested or In The Process of Investing a Substantial Amount of Capital in a Qualifying Business

   9 FAM 402.9-6(B)
   9 FAM 402.9-6(D)
   
   An E2 investor needs to have invested a “substantial” amount of capital in relation to the overall size of the business. An investment of USD 60,000 that is substantial for a small coffee shop is unlikely to be substantial for larger businesses.
   
   While there is no minimum amount of investment, US State Department guides consular officers to look for an investment of USD 100,000.
   
   Investment does not have to be in the form of cash. Frequently clients move inventory to the US business or leverage intellectual property, all of this counts as investment.
   

4. Invest in an Irrevocably Committed Investment

   An E2 qualifying investment must be irrevocably committed to the E2 business visa.
   Traditionally, E2 immigration lawyers have taken this to mean that the investment must already have been spent on business activities at the time the E2 visa is filed. It is now clear that this not true. Funds placed in an escrow account do not have to be spent at the time the E2 visa application is filed.
   Placing funds in an escrow account which irrevocably commits those funds to the business meets the “irrevocably invested” requirement. Funds in a business bank account do not count for E2 purposes. It is critical to ensure that funds committed to escrow are sufficient to fund expenses as articulated in the E2 Visa business plan.
   The advantage of an escrow account is that if your E2 visa application is refused you will be able to recuperate your investment. Escrow accounts are usually held in by major financial institution.

5. No Marginal Investments

   9 FAM 402.9-6(E)
   
   A “Marginal Investment” is an investment that provides only a minimal living for the investor and their family. An E2 investment which has the capacity to make a “significant economic contribution” within 5 years is not a marginal investment.
   
   Generally, an easy way to demonstrate that a business is not “marginal” is by employing workers. Theoretically businesses involving jobs which will be created in the future should meet this requirement. That said, cases involving purely future jobs may be viewed by skepticism by a consular officer or USCIS.
   

6. The E2 Business must be “For Profit”

   9 FAM 402.9-6(C)
   
   Charities and 501(c)(3) entities do not qualify as E2 businesses. An E2 business must be a “for profit” endeavor.
   

7. Lawful Source of Funds

   An E2 applicant has to demonstrate that they have obtained their E2 investment through lawful sources. As a practical matter less questions are asked about the source of an E2 applicant’s funds than in an EB5 case.
   

8. Intention to Depart

   9 FAM 402.9-4(C)
   
   When you file your E2 visa application you will file a statement that you intend to depart the United States when your E2 status ends.
   
   The US State Department has issued guidance to consulates in the Foreign Affairs Manual (“FAM”). 9 FAM 402.9-4(C) guides US consulates that an E2 applicant does not have to maintain ties with their home country and that a mere statement of intention to depart the United State at the conclusion of the E2 Status is sufficient for issuance of an E visa.
   
   However, practice dictates that consular posts may occasionally question this.
   
   

What documentation do you need for an E-2 Visa?

• U.S. immigration laws do not mandate a lot of required documentation in E-2 visa cases.
• Knowing the documentation expected by different officers in different consulates is key when filing E-2 visas in a specific consulate.

What Every E-2 Visa Applicant Needs to Know

All E-2 visa applications are processed by consular officers located outside the United States.

The Foreign Affairs Manual (“FAM”) contains the US State Department’s instructions to consular officers for processing E visa applications. While supporting documentation requirements do vary by consulate, the FAM does not.

It is therefore worthwhile knowing the provisions of FAM. FAM is the “rule book” by which a consular officer will assess your application.

E2 Visa Application Procedure and Processing Times

Step1 - COS or Consular Processing

The first decision is whether to file for Change of Status (“COS”) to E2 status from within the United States or for an E2 visa at a US consulate. Follow this link for more information.

• E2 status is different to an E2 visa. E2 visas can only be obtained from a US consulate outside the United States. An experienced E-2 visa lawyer can help you understand the relevant steps at the applicable consulate.
• The application procedure for the US E visas is unique in that it does not involve an application to the US Department of Homeland Security (“DHS”) or US Citizenship and Immigration Services (“USCIS”).
• DHS and USCIS only adjudicate an US E2 visa Change of Status cases and extension of E2 status cases filed from within the United States.
• USCIS and DHS are not involved in the initial adjudication of an E visa. This gives E1 and E2 visas a significant advantage in terms of processing time.

Step 2 - Which Consulate to Use

As consular procedures vary and processing times vary the choice of consulate can be critical. Your E vis lawyer can advise you on this choice. Consular options include:

• The consulate where the applicant lawfully resides will process the application fee and adjudicate an E visa application.
• The consulate in an applicant’s home country.
• Sometimes the consulate serving the area where an applicant is visiting may be willing to adjudicate and application.

Golden Rule for E2 Visa Success

The application procedure for the US E visas is unique in that it does not involve an application to the US Department of Homeland Security (“DHS”) or US Citizenship and Immigration Services (“USCIS”).

DHS and USCIS do adjudicate E2 visa Change of Status cases and extension of E2 status cases filed from within the United States. E2 status is different to an E2 visa. E2 visas can only be obtained from a US consulate outside the United States.

Most visas involve two steps: (1) adjudication by DHS/USCIS; and (2) visa processing by the applicable consulate. E visa application are made directly at a US consulate. USCIS and DHS are not involved in the initial adjudication of an E visa. This gives E1 and E2 visas a significant advantage in terms of processing time.

The consulate where the applicant lawfully resides will adjudicate an E visa application. In addition to the consulate where an applicant resides, the consulate in an applicant’s home country or even the consulate where an applicant is visiting may be willing to adjudicate and application.

E2 Visa FAQs

Check out our most frequently asked questions about E-2 Visa E2 Visa FAQs

Reference links

• U.S Citizenship and Immigration Services / Working in the United States with E-2 Treaty Investors
• Treaty Trader & Investor Visas and Visas for Australians in Specialty Occupations
• E-2 visa
• U.S Embassy and Consulates In the United Kingdom / Treaty Investor (E-2)
• New Consular Fees for Non-Immigrant Visas - March 31, 2023.