STARTING A BUSINESS IN THE UNITED STATES:
E-2 INVESTOR VISAS FOR AUSTRALIANS (GENERAL GUIDELINES)

Australians must own at least 50% of the U.S. business. This can be shown by stock certificates or corporate formation documents. Also, if the U.S. company is majority owned by an Australian-owned company, that will also satisfy the rule. In the case of large public corporations, the location of the stock exchange where it is traded is usually used as evidence of the nationality of the company.

Of note, if your business is a joint venture or equal 50/50 partnership between you and someone with another nationality that is also on the treaty list it is possible for both you and your partner to obtain E-2 visas to go to the U.S. and run the business. And in that scenario, the business would be classified as owned by both treaty countries and you could potentially bring over “essential” workers of both nationalities to work in your US business.

If you have a complicated corporate ownership structure, you can e-mail us or call our office (+61 2 91561032) to discuss whether it will satisfy the rule.

Yes. You can elect to apply under any nationality that you hold. So if you elect to apply as an Australian, in addition to complying with all the requirements listed above, it means you need to always use your Australian passport when entering the US on E-2 status.

Yes. The investment funds do not need to be located in Australia prior to investment.

You must have control of the investment money for it to qualify you for an E-2 visa. For example, money you have in a savings account, that you inherited, that was gifted to you, etc. would all satisfy the requirement. However, inheriting a business does not qualify. So a loan could qualify if it is secured by your personal assets; but loans secured by the assets of the US business would NOT qualify.

This is an area where many E-2 applications fail. Having all or a majority of your investment money sitting in a business bank account where it can simply be withdrawn will NOT typically satisfy this requirement. We have helped many clients structure their cash investments in such a way that they pass the “irrevocably committed” test.

Not exactly. You must already be in the process of investing the money or be actually invested in order to qualify for the E-2. HOWEVER, if you are purchasing a business you can enter into a purchase agreement that is contingent on the issuance of an E-2 visa and you can put the purchase money in an escrow account that will only be released to the seller if you are granted the visa. It is important to structure this purchase agreement and escrow account properly so that the U.S. consular officer is convinced that your investment is real and not just a future intent to invest in the U.S.

The law does not specify a specific dollar amount for a qualifying E-2 investment, it simply requires that it be “substantial”. Keep in mind, the fair market value of goods or equipment purchased by or transferred to your US business may count as part of the investment. Also, what is “substantial” varies depending on what type of business you are starting. For example, if you are opening a factory your investment amount would reasonably need to be higher than if you are starting an IT consulting business.

You can e-mail us or call our office (+61 2 91561032) for a free assessment of whether the cash and assets you plan to invest in your US business are likely to satisfy the E-2 visa requirements.

The application is either (1) sent to the E Visa Unit at a US Consulate in Australia or (2) in some circumstances you can apply to USCIS while you are in the US.

For option 1, we prepare the visa application package (which is usually hundreds of pages in length) for our clients in the style/order that is preferred by the E Visa Unit. We then submit the application to the investor visa desk at the appropriate Consulate in Australia. Then the US Consulate will do an initial review of the application within 10 business days and contact you with an interview date. Then you will have an interview with an officer from the investor visa unit. Those interviews generally include detailed questions about the visa applicant’s qualifications and the plans for the US business. Lawyers are not permitted to attend these interviews, but we prepare our clients for the interview. It can take the Consulate up to four weeks after your interview to make a decision about whether your visa will be granted, though typically the decisions are made much more quickly.

The location of your interview will depend on where your residence is in Australia:

For option 2, we submit the application package to the appropriate USCIS office in the U.S. Of note, not everyone is eligible to do a “change of status” application and the processing time for USCIS to make a decision on your application is typically 2 to 3 months. You cannot start running your business until the application is officially approved. And this is a “change of status” and would require that you visit a U.S. Consulate abroad the next time you leave the US to have the E-2 interview and receive the actual E-2 visa in your passport. So, in many circumstances, it makes the most sense to simply apply to the US Consulate in the first instance.

Yes, your application must include a business plan which incorporates 5 years of detailed financial projections. We believe that the business plan is perhaps the most important element of the application package because part of what the US consular office is deciding is whether your US business has the potential for success and job creation in the US. Therefore, we work with an outside team of financial experts who specialize in the creation of business plans for individuals who are seeking a visa related to the new company. Our clients, the attorneys in our business immigration unit, and this team of financial experts work together to craft the strongest business plan possible.

The length of the visa can be any amount of time up to 4 years, and you can apply for renewals indefinitely. The US consular officer or USCIS adjudicator has discretion to award the visa for a shorter amount of time and will do so if they want to check in on the functioning of your business sooner than 4 years in the future. This is one of the reasons that a strong business plan demonstrating the potential viability of your business is essential for a strong application.

Yes. Unlike with other visa types, the spouse of an E-2 visa holder may accompany the E-2 visa holder and apply for an Employment Authorization Document that allows them to work anywhere in the U.S.

No. Your spouse does not have to be an Australian in order to obtain the E-2 dependent visa and work authorization rights.

For a free assessment of whether you qualify for an E-2 visa, please e-mail us or call our office (+61 2 91561032).