The E-2 Visa
The E-2 visa is designed to allow investor to enter and work in the United States based on an investment they will be controlling while in the US. The investment is profit seeking, and is the treaty investor’s placement of capital that includes commercially at risk funds and/or assets. The capital must be subject to total or partial loss should the investment fail. It must be proven that the treaty investor has not obtained the funds from criminal activity, directly or indirectly.
The investment must be considered a substantial amount of capital. This means that the capital is substantial in relation to the total cost of either purchasing an established enterprise or establishing a new one, the capital is sufficient enough to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; the capital is of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise, the lower the cost of the enterprise, the higher the investment must be to be considered substantial. The purpose of the visa is to create American jobs and to stimulate the economy through foreign investment.
If you are interested in applying for an E-2 visa, reach out to an immigration attorney for more information. They can also advise you on whether or not the E-2 visa is right for you, or if you would benefit more by applying for a different visa.
Qualifications of a Treaty Investor
To qualify to be a treaty investor, an individual must be a national of a country with which the US maintains a treaty of commerce and navigation; have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the US; be seeking to enter the US solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or another corporate device.
Benefits of Becoming a Treaty Investor
One of the major benefits of this particular visa is that there is no minimum investment amount that is required. The investment must be considered substantial, which generally means that the investment should be proportionate to the nature of the business. Another benefit of this visa is that you can legally work in the United States with the business you have invested in.
There is an E2 dependent visa that allows for spouses to apply for a temporary work permit. This means they can work for any company in the US, or they can start their own business. Children under 21 that are not married are allowed to accompany the E-2 visa holder to the US and attend school.
The E-2 visa offers a lot of freedom for the individual that holds it. They are allowed to travel freely in and out of the United States. While an E-2 visa does not offer permanent residency, the E-2 visa can be renewed an unlimited number of times. An E-2 visa is good for two years and can be renewed as many times as the holder wishes. So long as it is approved each time, the visa holder is allowed to stay for as long as they wish. However, this visa is not applicable for dual intent, meaning that the visa holder can not apply for permanent residency while holding this particular visa. This visa operates on the idea that at the conclusion of the business, the investor will return to their country or origin or change their status. It is possible for them to adjust their E-2 visa holder status to an immigrant status. An immigration attorney can assist with this process.
How to Apply
An E-2 visa can be applied for by filling out the I-129 form for non-immigrant workers. The processing time can vary depending on if you are residing inside or outside the United States, but typically it takes about six months to process.
Applicants that reside outside of the country have to go through consular processing. This means that you will have to have a one-on-one interview with an immigration officer at a predetermined US consulate or embassy. During this interview, questions will be asked about your background, your enterprise, and your plans for living in the US. The purpose of this interview is to determine if your case is legitimate. An immigrant attorney can help you prepare for this interview to reduce anxiety.
Qualifications of the Employee of a Treaty Investor
To qualify for an E-2 classification, the employee of a treaty investor must be the same nationality of the principal alien employer, must meet the definition of “employee” under relevant law, and must either be engaging in duties of an executive or supervisory character. If they are employed in a lesser capacity, they must meet other special qualifications. Ask an immigration attorney for more details on these qualifications.
Should the principal alien employer not be an individual, then the enterprise or organization must be at least 50% owned by persons in the United States who have the nationality of the treaty country. The owners of which must be maintaining nonimmigrant treaty investor status. If the owners are not in the United States, they must be classifiable as nonimmigrant treaty investors should they wish admission to the US.
To qualify as an executive or supervisory character, the position must allow the employee ultimate control and responsibility for the organization’s’ overall operation or a major component of it. To qualify for a lesser position, the special qualifications that must be met make the employee’s services essential to the efficient operation of the business. Some examples of what can qualify an employee are, a degree of proven expertise in the employee’s area of operation, the possession of specific skills that others do not possess, the salary that such special qualifications command, and if these skills and qualifications are readily available in the United States. Some of these skills may qualify initially, but as development occurs, they may not be applicable at a later date.
If you are interested in applying for a visa to come to the United States, it is highly advised that you speak to an immigration attorney. They can provide you with more information and they can help you decide if the E-2 visa is right for you.
Beeraj Patel, Esq.
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