What’s an E2 visa?
An E2 Treaty Investor Visa is a non-immigrant visa which allows foreign nationals of treaty countries to live and work in the U.S. after making a substantial investment in a new business, existing business, or franchise business in the U.S.
Aside from the spouse and unmarried children under 21 years old of the treaty investor, this visa is also available for key employees going to the U.S. to work in the E2 enterprise provided they are a national of the same country as the investor.
Generally, this visa is valid for 3 months to 5 years depending on the country of origin and can be renewed as long as the treaty investor complies with the requirements.
The minimum investment amount for an E2 visa
While the US immigration laws don’t have a set minimum investment amount to acquire an E2 visa, they provide that the investment must be substantial. Under the law, the investor must have invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise. Moreover, such investment must not be considered a marginal enterprise. As such the enterprise must have the present or future capacity to generate ample income to provide to the treaty investor and their family.
What is considered a substantial investment?
The substantiality of an investment is determined through what’s called the proportionality test. Under this test, the amount of money invested in the E2 business and the total value of the business are compared. The total value of the business is dependent on whether you’re invested in an existing business or a new business. If you have invested in an existing business, its fair market value is instead computed while for a new business, the total cost required to make it operational is computed.
There’s no exact percentage to determine the substantiality, but from experience, the actual investment should be 100% of the value of the business for a $100,000 or less total value business.
It’s highly recommended that you consult with an E2 visa lawyer to help you with the requirements of an E2 visa. Your immigration attorney can help you determine if your investment is within what’s required under an E2 visa and increase your chances of getting approved.
Key points to consider when determining the E2 visa investment amount
Generally, the E2 visa is initiated through the U.S. Embassy or Consulate in your home country. However, even though there are laws and regulations to serve as guidance for the immigration officer, the interpretation of the rules is still left to the discretion of the officer to be applied based on your situation.
The intention behind the requirement for a substantial investment is that the E2 business is not merely speculative but has a high chance of success. Under the FAM, the investment of a substantial amount constitutes as substantial in a proportional sense, sufficient to ensure the investor’s commitment to the successful operation of the enterprise and to support the likelihood of the treaty investor successfully directing and developing the enterprise.
How does the immigration officer determine the substantiality of your investment?
As we have said, the substantiality of the investment is determined through what’s called a proportionality test. The substantiality of an investment is determined through what’s called the proportionality test.
Under the proportionality test, the amount of investment capital in the E2 enterprise and the total value of the business are compared. However, the total value of the business is dependent on whether you have created a new business or invested in an existing business. If you establish a new business, the total cost is computed to make it operational. Meanwhile, if you purchased an existing business, the fair market value is computed instead.
Moreover, there’s no exact percentage to determine the substantiality but experience tells us that for a business with a $100,000 or less total value, the actual investment should be 100% of the value.
Moreover, if your business is a service business such as a consulting business, the investment required may be lower as compared to a capital-intensive business.
An experienced immigration attorney can help you determine if your investment qualifies under the E2 visa requirements, so it’s highly recommended that you engage with the services of one.
Other factors that determine the substantiality of the investment amount
The proportionality test is one of the main factors used in the substantiality of the investment however, other factors must be considered as well such as if the enterprise is marginal or whether you’re in the U.S. when applying for the visa.
Aside from the requirement that your investment must be substantial, it must also not be considered marginal. A marginal enterprise is considered to be an enterprise which does not have the current or future capacity to generate ample income to provide for the treaty investor and their family members.
Marginality is essential for an E2 investment amount as the immigration officer may deny the application if the business can’t provide more than a minimal living for you and your family members.
The higher your investment, the stronger your chances of proving that your invested amount is substantial.
There are different ways you can show that your E2 business is not a marginal enterprise:
That the enterprise currently or eventually will earn more than enough income to provide for the investor and their family members. This can be shown through a business plan submitted with your E2 petition.
That the enterprise has contributed to the U.S. economy. This can be shown with your enterprise employing qualified U.S. employees.
Change of Status vs. Visa Processing
As it stands, there are two ways to apply for an E2 visa. If you’re staying in the U.S. under a valid visa, you can apply for a change of status. Meanwhile, if you’re staying in your home country, you can apply for a visa through the U.S. Embassy or Consulate.
Under the change of status, the petition is filed with the United States Citizenship and Immigration Services (USCIS) and can only be done in the U.S. Through this, you acquire a status but not a visa and once you leave the U.S., you don’t have the E2 status anymore.
Meanwhile, consular processing is done through the U.S. Embassy or Consulate in your home country.
Please take note that there are U.S Embassies or Consulates that are very strict and harsh with E2 visa applications and may deny investors for having not enough investments. Moreover, some would deny the application if the investment is not very high.
It is highly plausible that an investor may be denied the E2 visa in the U.S. Embassy or Consulate in their home country but get approved for a change of status in the U.S. There’s a possibility that you’ll be approved for a change of status with a lower investment amount than consular processing.
E-2 visa requirements
Aside from making a substantial investment, there are other requirements that you must satisfy to acquire an E2 visa. Here are these requirements:
You must be a national of a country which has a treaty of commerce and navigation or bilateral agreement with the U.S. or is otherwise qualified by law.
You must have an intent to leave the U.S. once your visa expires. Please take note that compared to other visas, the E2 visa is not a dual intent visa.
You made a substantial investment in a bona fide enterprise
Your enterprise is not considered marginal
You must be directing and developing the E2 enterprise in the U.S.
Your investment funds must be considered at risk and irrevocably committed to the E2 enterprise.
E2 visa costs
As with other visa applications, there are fees and costs that you need to take into account in your E2 visa application. After all, the proper payment of the filing fees and other costs is part of the process itself.
Here are the different fees and costs you may have to take note of throughout your application:
Form DS-160 – $160
Consular filing fees, if applicable. This applies to investors who filed their application outside the U.S. and are dependent on the U.S. Embassy or Consulate where the application was filed.
USCIS filing fees – $460, if applicable. This applies to investors who filed their applications inside the U.S.
Premium processing fee – $2, 500. This applies to investors who initiated their application with the USCIS. Premium processing ensures that your application is processed in 15 days.
Legal fees and other professional fees
To acquire an E2 visa, there are a few requirements that you must prove that you possess to the immigration officer. These requirements can be evidenced by supporting relevant documents which are attached and submitted along with the application.
If you’re unsure of how you can prove that you satisfy the E2 visa requirements up to the last dot, you can enlist the services of US immigration lawyers experienced with handling E2 visa cases. Not only that these lawyers handle your case from the start until the finish, but also give you advice on how to go through your application. They ensure that you’re able to satisfy the requirements of the visa, and thus help you increase your chances of getting approved.