E-2 Treaty Investor Visa

Investor Treaty
How do I know if my country has an E-2 treaty? See below for the full list of E-2 treaty countries.
 
Nationality
How do they determine the nationality of the U.S. business? The nationality of the U.S. business is determined by the nationality of its owners, not its place of incorporation.
 
What percentage of the U.S. business must be owned by nationals of the treaty country? The U.S. business must be at least 50% owned by nationals of the treaty country. 
 
Example: The U.S. business has four owners with equal shares. Two are Mexican nationals, one is a U.S. resident from Mexico, and the other is a U.S. citizen. The business is therefore 50% Mexican and 50% American. Since Mexican nationals collectively own 50% of the business, it qualifies as Mexican for E-2 purposes. 
 
What if the U.S. business is in turn owned by another company? To determine the nationality of the U.S. business, you must trace the ownership through the corporate chain until you arrive at the individual owners.
 
What if the parent company is publicly traded on a stock exchange? The nationality of the parent company is determined by the nationality of the stock exchange where the shares are traded. 
 
Example: The Mexican parent company owns a U.S. company, and the Mexican company is publicly traded on the Mexican stock exchange, then the U.S. company qualifies as Mexican. 
 
What if I have a co-owner (50/50) with a different nationality than mine but the U.S. also has a treaty with his/her country? If the U.S. business is split 50/50 then both shareholders can qualify for the E-2 even though you have different, but qualifying, nationalities.
 
What if I have two nationalities and the U.S. has treaties with both countries? Then you can pick the nationality that benefits you most for visa purposes. 
 
Example: Visa length is based on reciprocity and can vary from 3 months to 5 years. You may choose the nationality that has the longest visa length.
 
What if I am originally from a treaty country but I am now a US citizen or resident? Unfortunately, you no longer qualify as a national of the treaty country for ownership purposes. 
 
Intent Depart 
Do I need to maintain a foreign residence like with a tourist or student visa? No, you do not need to maintain a residence abroad. A statement of your unequivocal intent to depart when your status ends is normally sufficient.
 
When is the statement not sufficient? Intent to depart usually only comes up in cases in which someone has a negative immigration history, meaning, they previously entered without permission, overstayed, or worked without authorization.
 
Physical Office Space
Do I need a physical office space? A physical office space is not required, but it will depend on the specific nature of your business.
 
Must Have Invested or Be in Process of Investing
What are qualifying sources of funds? The source of your investment can be income, savings, gifts, inheritance, contest winnings, loans (collateralized on personal assets) or any other legitimate source. You must be able to document your source and path of funds.
 
Must my investment funds originate from outside the U.S.? No, your investment funds can originate from within the U.S.
 
Can a loan count as part of the investment? Loans secured by the assets of the U.S. business do not count as part of the investment. Loans secured by personal assets or guarantee do qualify as part of the investment. 
 
Does my investment have to be spent, or is it sufficient to show that I have the funds available? The investment funds must be irrevocably committed, i.e., spent.
 
If I am purchasing an existing business, can I place the funds in escrow? Yes, in this situation escrow is allowed as long as the only condition on the funds being released to the seller is the approval of the E-2 visa.
 
Does my investment have to be money? No, your investment can also include the transfer of equipment, inventory, land, or even intellectual property to the U.S. company as long as you can demonstrate the value of the transferred asset. 
 
Real and Active
Can my business be a non-profit? No, your business must be a real and active commercial undertaking producing some service or commodity for profit.
 
What if my business is still a few months away from being operational? Your business needs to be real and active, or will be immediately upon issuance of the visa, it cannot be an idle or speculative investment.
 
Must I have all the required licenses and/or permits by the time I apply? Yes, your business must meet all applicable legal requirement for doing business in your jurisdiction when you apply.
 
Substantial Investment
How much is a substantial investment? Is there a minimum or set amount? No, the required amount varies and is determined by the nature of your business.
 
What if I am buying an existing business? Then substantial is defined as the purchase price, which is normally its fair market value.
 
What if I am starting a new business? Then substantial is defined as the actual cost needed to establish your business to the point of being operational. 
 
What percentage of my investment must be spent? The government applies a proportionality test that weighs the amount of the qualifying funds invested against the cost of the business. Here is an example provided by the Department of State:
 
An amount of capital invested in an enterprise is merely presumed to be substantial when it meets or exceeds the percentage figures given in the following examples (amounts shown are in U.S. dollars):
 

• 75% investment in an enterprise costing no more than $500,000 (if the cost of the enterprise is substantially lower than $500,000, 85-90%, or even 100% investment may be required).

• 50% investment in an enterprise costing more than $500,000 but no more than $3,000,000.

• 30% investment in any enterprise costing more than $3,000,000.

• A multi-million-dollar investment by a large foreign corporation is normally considered substantial, regardless of the examples given above.

 
In other words, if your investment is small (under $100k), then 100% of the funds should be spent. In the alternative, if your investment is large (over $1 million) then only 50% of the funds may need to be spent by the time you apply.
 
Marginality 
What is marginality? Marginality requires that your business have the capacity to generate enough income to provide more than a minimal living for you and your family.
 
What if my business is new and has little or no income? The required income generation (and employment) must be realizable within five years from when you start the business. 
 
How do I prove I will generate the required income within five years? New companies must present a business plan including five years of financial projections.
 
How many employees are required? There is no specific employment requirement. However, there should be sufficient employees (or contractors) to relieve you from performing the day-to-day duties of your business allowing you to focus on managing your investment. 
 
Develop and Direct the Enterprise
Can I play a passive role in my company? No, you must demonstrate that you will personally develop and direct the enterprise. 
 
How do I prove I will personally develop and direct the enterprise? 50% ownership or control through management are considered de facto evidence of your ability to develop and direct the company.
 
What if I am a minority shareholder?  You must show that you will be an employee of the business coming to fill an executive, supervisor, or essential employee role. 
 
E-2 Employees 
Can I bring an employee on an E-2 visa? Yes, you can bring an employee of the same nationality to fill a role that is either executive, supervisory, or essential/specialized.
 
What qualifies as an executive or supervisory role? The following factors are considered: 

• The title of the position to which the employee is destined;

• The employee’s place in your company’s organizational structure;

• The duties of the position;

• The degree to which the employee will have ultimate control and responsibility for your company’s overall operations or a major component thereof;

• The number and skill levels of the employees your employee will supervise

• The level of pay; and 

• Whether the employee possesses qualifying executive or supervisory experience.

 
What qualifies as an essential/specialized role? The following factors are considered:

• The experience and training necessary to achieve such skill(s);

• The uniqueness of such skills;

• The availability of U.S. workers with such skills;

• The salary such special expertise can command;

• The degree of proven expertise of the employee in the area of specialization; and

• The function of the job to which the employee is destined.

 
Is it required that an E-2 employee have worked for me abroad? No, an E-2employee does not have to have experience with your business or overall organization, but it helps. 
 
Other E-2 Information
What is the length of an E-2 visa? The visa length and number of entries is based on reciprocity so it varies based on nationality. See below for the visa length for each country.

When I enter the country, how long is my E-2 status? E-2 status is granted for two years, regardless of nationality or visa length.

Is there a limit to the number of times I can renew my E-2 visa? No, there is no limit to the number of times an E-2 visa can be renewed or E-2 status can be extended.

Can my spouse and children apply with me? Yes, spouses and children under the age of 21 are eligible for E-2 visas and E-2 status.

Can my children attend school while in E-2 status? Yes, your children can attend school in E-2 status, including public school, in the U.S., but they cannot work.

Can my spouse work while in E-2 status? Yes, upon entering the US in E-2 status your spouse is immediately eligible to work and/or attend school. The I-94 issued to your spouse should say “E2S”.

What if I am from a treaty country but my spouse and children are not? As long as the principal applicant qualifies for the E-2 visa, then the dependent spouse and children are entitled to receive E-2 visas even if they are not from the treaty country.