What is the E-2 Visa?

The E-2 visa allows citizens of a country with a trade agreement with the United States to obtain a nonimmigrant visa to invest and work in the United States. As it is a non-immigrant visa, this type of visa does not give the right to permanent residence or green card.

Investors who meet the requirements usually receive a 5-year visa with the possibility of renewal as long as all the requirements continue to be met.

For a full list of treaty countries, click here.

What benefits does it grant?

It allows the investor, their spouse, and unmarried children under the age of 21 to live temporarily in the United States.

It also allows the investor to work in the United States in his or her company (or group of companies) and the spouse to obtain work authorization to be employed or work independently in the United States.

Does this Visa Require a Minimum Stay in the U.S.?

This visa allows the investor and the beneficiaries a continuous stay of 2 years each time they enter the United States, but does not require a minimum length of stay, which is why it provides a great deal of flexibility and freedom for the investor and his or her family.

Which are the requirements?

To qualify for the E-2 visa, the treaty investor must:

1. Be a national of a country with a trade agreement with the United States.
2. Have invested, or be actively in the process of investing, a substantial amount of capital (“substantial” is a subjective criterion that depends on the business, but usually $150,000 meets this requirement).
3. Make the investment in a “bona fide” company in the United States; that is, in a real, active, and operating company that produces services or goods for profit.
4. The company cannot be “marginal.” This means that the business must have the present or future ability to generate more than enough income to provide a minimum livelihood for the investor and his or her family (in the case of new businesses, this is demonstrated by the 5-year projections contained in the business plan supporting the petition).
5. Have operational control over the company, which can be achieved in 2 ways: (a) owning more than 50% of the shares or interests of the business or (b) if you have a 50% share, having a single partner with the remaining 50%, which is interpreted as “negative control” (the investor does not have the power to impose a decision, but does have the power to block the decisions of the other partner).
6. Have invested his or her own funds (or have his or her own assets at risk) in order to generate a return. This means that the funds must be owned by the investor and not by third parties. The funds can only be third-party funds if that loan is guaranteed by the investor’s assets (such as through a pledge or mortgage).
7. Be able to demonstrate the origin and lawful path of the funds.

What Type of Business Is Good for the E-2 Visa?

Investors can choose whether to (a) create their own business from scratch, (b) buy an existing business, or (c) open a franchise.

It is important that the profile of the investor fits well with the business that is going to open to justify that the investor must be present in the United States to establish, grow, and solidify his business.

How is the process and how long does it take?

To apply for the E-2 visa, the investor must have irrevocably committed the funds; that is, invested and effectively spent the funds. Therefore, the duration of the process depends significantly on how long it takes the investor to (a) open the company or companies in the United States; (b) transfer the necessary funds to the company’s bank account (ideally by a single or a few official transfers from an account in the investor’s name); (c) irrevocably spend the funds (i.e., on equipment, inventory, prepayment of the lease, remodeling of the premises, franchise fees, etc.), and (d) prepare the business plan (we usually work with a company that may have the final version in about 4 weeks).

When the previous steps are done, applying to the consulate does not usually take long. What can cause delays currently is the availability of appointments at the consulate. Before the pandemic, there was usually 1-2 months between the time the petition was sent to the consulate and the time the visa was stamped in the passport.

During this waiting time, we also do a mock interview through which we prepare investors for the consular interview with general advice, common questions, and help them understand the reasons behind those questions.

If you are interested in obtaining more information, you can contact us at info@vialexlaw.com or follow us on social media where we will be publishing more information about the different visas and answering some of your questions.