A foreign-national entrepreneur with aspirations to do business in the United States may struggle to fit his or her business goals into the popular H-1B or L-1 work visa programs. A better alternative for some may be the lesser-known E-2 visa program.
Pursuant to Bilateral Investment Treaties, foreign nationals from certain countries are eligible to receive E-2 treaty investor visas if they invest a substantial amount of capital in a new or an existing U.S. business. Furthermore, the E-2 investor can bring in certain foreign employees to work for the U.S. business, provided the employees share the same nationality as the E-2 treaty investor. Regardless of their nationality, spouses and children (under 21 years of age) of E-2 investors and E-2 employees are also eligible for E-2 visas. The full list of countries that maintain a treaty of commerce with the U.S. can be found at http://travel.state.gov/content/visas/english/fees/treaty.html.
Nationals of these treaty countries may receive an E-2 treaty investor visa if they can establish ALL of the following:
They have invested, or are in the process of investing, a substantial amount of capital in a bona fide business in the U.S.
The investment must involve placing the investor’s capital at risk with the goal of generating a profit; i.e., the investor must be taking the risk that his/her investment will fail and result in a loss.
The amount of invested capital required in order to be considered substantial is relative to the size of the business. In essence, the amount has to be substantial in relation to the total cost of purchasing or creating the business. However, the lower the cost of the enterprise, the higher the investment amount must be.
The business cannot be marginal; i.e., the business must have the capacity to generate more than just enough income to support the E-2 treaty investor and his/her family.
The existing or proposed business must be a real, active, and operating business that produces goods or services for profit.
They intend to enter the U.S. with the sole purpose of developing and directing the U.S. business. The treaty investor must own at least 50% of the business or have operational control of the business.
They intend to depart the U.S. at the expiration of the E-2 visa.
The application process for an E-2 visa involves the following steps:
Investors purchasing an existing business should enter into a purchase agreement and any other contractual agreements needed to effect the purchase, such as a lease contract. Investors starting a new business in the U.S. should execute all necessary paperwork needed to establish the business.
Investors who are abroad will need to prepare and electronically submit a DS-160, Nonimmigrant Visa Application, to the Department of State, before submitting all supporting documentation and scheduling an interview at a U.S. Embassy or Consulate. Investors who are in the United States can apply for an E-2 visa by submitting Form I-129, Petition for a Nonimmigrant Worker, and the E Supplement to the U.S. Citizenship and Immigration Services (USCIS).
If approved, investors will be issued an E-2 visa that is valid for an initial period of two to five years. An E-2 visa can be renewed indefinitely in two-year terms by submitting Form I-129 and the E Supplement to USCIS.
With the exception of step 1, the application process is the same for E-2 employees and for spouses and children of E-2 investors and E-2 employees. E-2 visas issued to spouses and children will be valid for the same period as the E-2 investor or employee. However, upon turning 21 years old, the status of an E-2 child terminates and s/he will have to return to his/her home country or find another visa to remain in the U.S.
Employees of E-2 Investors or Enterprises
An employee of an E-2 investor or enterprise may receive an E-2 visa if his/her duties in the U.S. will be of an executive or supervisory character, or, if employed in a lesser capacity, if s/he has special qualifications that make him/her essential to the efficient or successful operation of the business. The employee must be of the same nationality as the E-2 investor and s/he must intend to depart the U.S. once his/her E-2 status terminates or expires.
Employees with executive or supervisory duties should have ultimate control of and responsibility for either the overall operation of the business or one of its major components. Such executive or supervisory positions should not generally involve direct supervision of low-level employees.
Employees with special qualifications should possess skills that are essential to the efficient or successful operation of the E-2 business. To make this determination, an immigration officer may consider, among other factors, the degree of proven expertise of the employee in his/her area, whether others possess the employee’s specific skills, the salary such skills command, the length of the employee’s employment with the E-2 business, and whether the special skills and qualifications are readily available in the U.S.