The Visa known as the Treaty Investor Visa allows foreign nationals to enter the United States for the purpose of directing and developing substantial investments made in a United States business.
Certain foreign investors may qualify for the E-2 Treaty Investor Visa. The underpinnings of this type of Visa are various treaties of trade and navigation between the United States and certain foreign countries. To learn more call our Office at 1-210-222-2288.
This highly desired non-immigrant visa can be made available to nationals of treaty countries who invest substantial funds into a United States business or enterprise and whose presence is necessary to direct and develop that business or enterprise.
For a private consultation, call our Office at 1-210-222-2288.
AdvantagesThis visa classification has several significant advantages for qualified foreign investors.
Ownership by InvestorThe treaty investor visa requires the investor to own the U.S. business. This ownership may be as an individual proprietor, majority partner, or majority corporate shareholder. Unlike many countries, there is no requirement that a U.S. citizen or resident own any interest in the investment.
Short Processing TimeBecause the E-2 is a non-immigrant visa, there is no need to satisfy a quota waiting period. Applications for change of status to E-2 in the United States require only 60 to 180 days depending upon location of the INS office having jurisdiction over the investment enterprise.
For those investors making application abroad, the processing time may vary from two months to as little as two days.
DurationOnce awarded, the E-2 visa status may be maintained indefinitely by the principal investor by maintenance of the proper status of the business enterprise in the United States. Extensions can be granted by the Immigration & Naturalization Service or the U.S. State Department.
Permission to Work in U. S.The E-2 visa allows the principal investor to be actively employed in the investment enterprise. He may be paid salary and/or draw dividends or receive benefits similar to those of United States workers.
Dependent spouses and children are able to work while in dependent E-1 visa status after obtaining an Employment Authorization (EAD).
Includes Spouse & ChildrenQualified investors are entitled to request E-2 status for their spouses and children. Spouses can maintain this status indefinitely, assuming that the principal investor continues to qualify and that the marriage continues in tact.
Children can retain E-2 status until they reach twenty-one years of age.
Includes Key EmployeesFor those businesses with sufficient number of United States employees additional E-2 visas may be available for key managerial employees who are determined by the United States State Department to be necessary to the operation of the business in the United States.
The number of employee E-2 visas depends on the size and complexity of the United States enterprise.
The dependents of the key E-2 employee are entitled to derivative status as in the case of the primary E-2 investor. These dependents may remain in the United States in E-2 visa status as long as the key E-2 employee remains employed by the E-2 business.
The E-2 enterprise must continue to exist and continue to satisfy the investment criteria of the treaty. (For example the enterprise must remain owned 51% by the investors of the treaty country, must remain active in nature and must maintain a substantial investment in the United States.)
Dependents Permitted to Attend School or CollegeThe treaty investor and key employees may attend school on their E-2 Visa status. Their dependents are permitted to attend school or college until their twenty-first birthday without obtaining additional visas so long as they continue to qualify under the E-2 criteria. (Many colleges will allow attendance but will consider the E-2 students to be non-residents for tuition purposes.)
Ownership of Real EstateE-2 visa holders are free to purchase homes or other real estate while in the United States. Upon termination of E-2 status the investors are not required to liquidate these holdings. (However, loss of visa status may affect the ability to enter and remain physically present within the United States.
For a private consultation, call our Office at 1-210-222-2288.
Requirements Substantial InvestmentTo determine whether an investment is substantial, the Immigration & Naturalization Service and the State Department utilize a proportionality test. This test compares the amount of qualifying funds actually invested against the total costs of purchasing an existing business or the total cost of establishing a newly created business and making it operational.
Each investor must demonstrate that he has invested a substantial amount of capital into a new or existing United States business. There is no specific amount that qualifies as a minimum investment. Instead, the amount invested will be viewed on a qualitative basis, taking into consideration the nature of the business and the amount of capital necessary to establish that type of business on a successful basis.
If the amount of capital actually invested is the same as the cost, the investment is considered to be 100% of the required funds, and is considered “substantial.”
For those investments that are not 100%, the higher the cost of the business, the greater the amount of financing against the business assets is allowed.
Funds CommittedIn order to qualify the investment, the funds must be “at risk”. Some credit may be allowed for capital reserves or operating reserves where appropriate and necessary to the particular type of investment. The funds must be in the United States and either paid, in trust, or in some cases, under contract.
Nationality of InvestorThe investor must be a national of the treaty country through which reciprocal investment is allowed. Visa status is not available to investors who are merely residents of the treaty country, or who hold “inferior” passports due to secondary nationality status within the treaty country.
Control by InvestorThe E-2 investor must control the investment which he seeks to direct and develop. Control is generally considered to be a minimum of 50% ownership of the enterprise.
Not MarginalThe investment must not be a marginal enterprise solely for the purpose of earning a living. The investor must demonstrate that either:
There is income or financial resources from other sources to support the investor and the family, or; The investment will expand job opportunities locally and/or have a significant impact on the local economy.
Active EnterpriseThe enterprise be “active” in nature. This activity serves as the justification for the investor’s presence to direct and develop the enterprise. The “active” requirement is evaluated on a case by case basis. Clearly, there must be a “on location” management need arising from the investment’s activity in the United States.
U.S. Citizens EmployedAn investment that does not create employment for United States citizens or residents may be considered to “merely create a job for the principal investor”. This conflicts with the marginality concept inherent in the investment treaty. There is no specific number of employees required, but the number should be consistent with the nature of the enterprise. A large number of United States employees often merits favorable consideration.
Past History of EnterpriseThe operating history and success of an existing enterprise is considered in evaluating the investment. Factors such as prior profits, payroll, growth, and longevity of the enterprise will provide a qualitative guide for assessing the prospective investment’s potential.
Direct & DevelopThe principal investor must demonstrate that he is coming to the United States to “direct and develop” the investment enterprise. The nature of the investment should dictate the need for the investor to be physically present in the United States.
Investor’s AcumenThe prior education, training, and work experience is a relevant consideration in granting the E-2 status. Depending upon the sophistication of the investment enterprise, there is a corresponding need for the investor to possess adequate acumen to direct and develop the investment enterprise. This is a qualitative analysis that can take into account any relevant factors that support the investor’s abilities to manage the investment.
For a private consultation, call our Office at 1-210-222-2288.