Treaty Investor Visa
The following is a
brief summary regarding E-2 eligibility, including certain policy guidelines
for determining the substantiality of an investment.
Treaty of Trade
A treaty must exist between the U.S. and the alien's country. E-2 applicants
must be nationals of a country with which the United States has a qualifying
The investing company must be majority held or controlled by nationals
of the alien's country. The nationality of the company engaging in investment
is the nationality of those persons who own at least 50% of the stock
of the corporation. The nationality of the persons owning the corporate
stock is their country of citizenship. The principal investor must have
the same nationality as the treaty enterprise. (Advisal: This 50% ownership/control
requirement must continue throughout the period for which the E-2 status
holders require such status; if the 50% ownership/control is eliminated,
the E-2 status holders go out of status.)
A treaty investor must have irrevocably made (invested and put at risk)
a substantial investment in a business in the U.S. or be actively involved
in the process of making such an investment.
in the Process"
"Actively in the process" means that the investor has entered into a legally
enforceable agreement which commits him or her to complete the investment
of substantial funds in the business enterprise. An example might be the
purchase of an existing business where escrow and a lease on the business
premises have been assigned to the investor.
The key issue in the case of an E-2 visa is whether the alien has invested
or is investing substantial capital which will create employment, in a
bona fide enterprise, and is not seeking to proceed to the United States
in connection with the investment of a small amount of capital in a marginal
enterprise solely for the purpose of earning a living. In evaluating whether
or not an alien has made a substantial investment, the State Department
applies the proportionality test requiring a greater "stake" in the enterprise
as the total cost of establishing a viable enterprise decreases. For example,
for small businesses (i.e. those costing $500,000 or less), the State
Department would expect the alien's capital investment to be no less than
75 percent of the total amount necessary to establish a viable enterprise
or purchase an existing enterprise. If the cost of the enterprise is substantially
lower than $500,000, 85 percent to 90 percent or even 100 percent investment
may be required.
In the alternative,
the amount invested may be considered substantial if it is an amount normally
considered necessary to establish a viable enterprise of the type contemplated
(a test normally applied to new businesses).
Although there are no formal restrictions as to the type of business that
must be engaged in to qualify for a treaty investor visa, the business
must be an active one since it should require full-time management by
the investor and should tend to create employment for full-time U.S. workers.
A passive real estate investment consortium is not considered "active."
Treaty investors may bring their spouse and minor unmarried children to
reside with them in the U.S. as dependents. They may be nationals of any
Duration of E-2
The visa is valid initially for two years, with extensions of two year
periods. A treaty investor may continue in the U.S. for as long as he
or she continues to carry on the qualifying business, the treaty between
his or her country of nationality and the U.S. continues in force, and
the 50% foreign national investment requirement exists.
E visa holders do not have to maintain a foreign residence which they
have no intention of abandoning as long as it is their intention at some
indefinite time in the future to leave the United States when their period
of stay (plus authorized extensions) expires. Consequently the treaty
status is the next best thing to permanent residence and may be very attractive
to a person who wishes to live in the U.S. indefinitely, but is unable
to qualify for permanent residence status.
Key Employee of
an E-2 Investor
An employee of the same nationality as the treaty investor may also qualify
for treaty status if he or she will be employed in the United States by
the treaty company in an executive or managerial position, or in a capacity
that is essential to the successful operation of the treaty company. It
would be necessary to show that the employee will not be performing ordinary
duties but is instead a key employee who will render services of a type
that a U.S. worker would be unable to perform.