New York City E-2 Visa Attorney
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The E-2 Visa Requirements
— The E-2 visa investor must be a corporate person who is a national of a country that is a party to a treaty with the United States as previously described.
— There must be a substantial investment that is sufficient in and of itself to ensure that the enterprise will operate successfully. For a low-cost enterprise, the investment percentage needs to be higher than that of a high-cost enterprise.
— Idle or speculative investments and securities, such as a bank account with uncommitted funds, are not sufficient; there must be an investment in an actual, operating business enterprise.
— The funds must be under the investor’s control.
— Commercially speaking, the investment must be at risk.
— The investor must not secure a loan with assets from the investment in the business enterprise.
— The investor must start and run the enterprise in the United States.
— If not the main investor, the applicant must either have a supervisory or executive role or have highly specialized skills needed for the operation of the enterprise.
— The investor cannot apply as an unskilled or ordinary worker, because the above-mentioned roles are what is acceptable.
The E-2 Visa Investor:
The treaty trader E-2 visa is often the most appropriate E-2 visa for investors buying their own business or establishing a new business in the United States. To qualify for this visa the most important factors are:
— The investment must be “substantial.” There is no minimum figure required and investments in small and medium-sized businesses are contemplated in the Foreign Affairs manual, but it is related to the amount necessary to purchase an existing business or establish a new one. This “proportionality” is an either or test: the amount invested is weighed against either criterion. Investments at the lower end of the range are usually between $100,000 and $150,000 but can be less. Some financing is possible, but should not be more than 25% — 30% of the purchase price.
— The investment must be irrevocably committed to the purchase and should be placed in a special escrow account. Funds in a business account, for example, are normally insufficient to qualify you for an treaty trader E-2 visa.
— The investment must be “non-marginal.” This requires demonstration that the business will generate more than enough income to support the investor and the investor’s family, but also contribute to the US economy, by employing US workers. In short, the business will produce profits.
— The enterprise funded must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. The investor is expected to be actively engaged in developing and directing it. Passive investments — non-committed funds in a bank account, a paper organization, or passive speculative investments, like stocks or undeveloped land — do not qualify since they do not require the intent to direct or develop a commercial enterprise.
— The investor must be the source of the invested funds. Personal loans from relatives or friends can be considered part of the investment as long as the business is not collateral for the loan. Gifts of funds or inheritance for the investment are also permitted.
Other E-2 Visa Considerations
Current regulations allow for two co-investors to invest in, obtain E-2 visas and work in the business. The two investors can be related or unrelated business partners
The spouse of an treaty trader E-2 visa investor can apply for work authorization once in the US, and work for any employer. Dependent children under 21 will normally receive dependent visas valid until their 21st birthday. Dependent visas do not permit recipients to work in the business or elsewhere, but they can study or simply accompany their parents.
Elderly or disabled dependents can obtain B-2 visas, often simultaneously with the investor, and are normally permitted to stay in the US with the investor as long as their visa status remains valid.
E-2 visas can be issued for up to five years. On renewal, the visas are often granted for five years as long as the issuing US Embassy is satisfied that the business continues to meet the E-2 investor visa requirements. So long as eligibility continues, “E” status not only permits the visa holder to engage in the qualifying trade, but permits incidental activities as well, and to stay in the United States “indefinitely”, so long as the alien engages in the qualifying “E” employment.
This visa category cannot be used as the prerequisite for an application for permanent residence (Green Card) by the Treaty Investor, because the law prohibits the investor from petitioning himself. However, if the investor has a business in the treaty country which continues to trade while the investor is in the US, the investor and his/her family may be able to qualify for Green Cards on the basis of a Multinational Manager application, after the US business has traded for at least one year.
Investors can also consider other options to obtain a Green Card, after an initial E-2 investor visa including:
Sponsorship by a close relative.
Sponsorship by a prospective employer.
Making an EB-5 investment of $1.8 million (or $900,000 in a rural area or area of high unemployment) in a business.
Family Members of E-2 Visa Holders
If the holder of an E-2 visa Investor Visa has unmarried children younger than 21 years of age and/or a spouse, these persons may apply for derivative visas. Spouses of E-2 visa holders can apply to the Department of Homeland Security for employment authorization. It should be noted that if the E visa holder’s children are holders of derivative E visas, they are not entitled to work in the United States.
Time Limits
As long as E-2 investor visa holders are complying with their E-2 visa requirements, they may stay in the United States as long as they continue to hold their status with the business enterprise.
E-2 Visa Application Assistance
Retaining a New York City E-2 visa attorney with experience and knowledge of the process is absolutely necessary when handling such important E-2 matters.
