In this section, we cover the FAQs regarding the E-2 Visas.
Click on the link below to find out more about each section:
E-2 Visas FAQs
Overview
An E-2 Visa is a Visa Classification that is available for foreign nationals who wish to live (and work/run their businesses) in the U.S. and are actively involved in developing and directing the operations of a business. As of today, the E2 visa is NOT a direct path to a Green Card, however there are ways to pave the path to a Green Card for E2 visa holders.
Requirements & Eligibility
There are 6 key requirements for the E-2 Visa:
1. You Must Be a National of a Treaty Country - The E-2 Investor Visa is only available to people from the countries with which the U.S. has a Treaty.
2. You Must Have Invested or Be Actively in the Process of Investing in the Enterprise - This involves these 3 requirements:
a) Show Legitimate Possession and Control of the Funds
You must invest funds that you have obtained by lawful means and you must be able to provide a paper trail to the government showing that you either received the funds as a gift, we able to save the funds or legitimately earned the money. There are various forms of proof that will satisfy this requirement including tax returns, bank statements, investment accounts, and more.
b) All Funds Invested Must Be “At Risk” and Irrevocably Committed
All of the assets invested must be personal assets subject to risk of loss. You must personally be “on the hook” for repayment of any funds borrowed or credit card debt incurred for any requirement that forces you to sign contracts and/or spend money prior to the approval of the Visa. The “risk” must be personal (not on behalf of a corporate entity/business)
c) You Should be About to Start or have Already Started the Business
While you cannot accept money from clients or “do business” until the Visa is approved, your business must be at the “start up ready phase” (lease signed, business bank account set up, materials purchased).
3. You Must Be in a Position to “Develop & Direct” the Business With Skills
You cannot get the E-2 Visa unless you are the one that is going to direct and run the business. The U.S. government will expect to see that your educational background or personal experience with the business qualifies you to “Develop and Direct” a successful business.
4. Your Investment Must Be Substantial
The U.S. government does not have a predetermined amount that they consider substantial and considers each application on a case-by-case basis. It is worth noting that idle cash sitting in a business account is NOT considered an investment, but the government will consider a reasonable amount of working capital as part of an investment. For example, Lauren uses the threshold of a $100,000 investment as a rule of thumb.
5. Your Investment & Business Cannot Be Marginal
Your business plan must show a good rate of expected growth over a 5-year period or by showing that you plan to hire employees in the future and improve the welfare of the community.
6. You Must Intend to Return to Your Home Country After Expiration of the E-2 Visa
This is not a difficult test to meet because the requirement is only that you must do is sign a document that indicates you plan to return home once your visa expires. Unlike many other visas, you do not have to show any financial ties to your home country.
Application Process
You can apply for an E-2 Visa one of 2 ways:
Applying for an E-2 Visa While in the U.S. (in E-2 Status)
If you are currently in the U.S. (in legal status), you can file a petition to change your status to “in E-2 status” with the United States Citizen and Immigration Services (USCIS). This petition is document-intensive (similar to the E-2 application itself) and you must provide documentation to support all of the E-2 visa requirements. It is important to note that the change of status does NOT permit you to leave/re-enter the country as an E-2 visa permits; you are restricted from travel outside of the U.S., and if you do leave, your “in E-2 status” will be compromised. Note that this status is typically granted for a 2-year period. For many of our clients, this is a good stop-gap measure while waiting for your Consular interview (especially in light of the long delays due to COVID closures, backlogs, etc.)
2. Applying for an E-2 Visa at a Consulate (An E-2 Visa)
Traditional E-2 visas are typically granted for between 2 & 5 years, depending on reciprocity (see this link for details). With a traditional E2 visa, you can depart and re-enter the U.S. any time, without restriction ie: freedom of exit and entry. If you have dependents, you will need a separate application for each of them.
Currently, the main challenge with Consular processing is the long delays due to COVID closures and resulting backlogs, which has put a damper on this more common method of securing a visa.
How are family members treated?
Spouses and children under 21 can obtain a “derivative visa” as part of the E2 process. With said status, the spouse will be able to obtain a work authorization but the children can only attend school in the U.S.
