Many key factors decide whether an E-2 visa petition will meet investor and individual guidelines. The E-2 visa is oriented around establishing a new business venture or purchasing a pre-existing business and requires the investor to put their own money at risk to make a commercial profit. Only foreign nationals from countries with a Treaty of Trade and Commerce with the U.S. will qualify for the E-2 visa program, whether the application is for a business owner or their employee. So, how does someone determine ahead of time if they are a good candidate to qualify for an E-2 visa?
The Two Types of Investor Visas
There are really two types of investor visas: the EB-5 and the E-2. The EB-5 visa is discussed in depth in many other articles on our site, but to give a quick rundown: the EB-5 visa was created to attract foreign capital investment into the U.S. and provide a path for those foreign investors to obtain green cards. The EB-5 requires a personal investment of either $500,000 or $1,000,000 and there is congressional talk of raising the minimum investment amount in the near future. Each EB-5 investor must prove their investment created at least 10 full-time permanent jobs for U.S. workers. Most investors under the EB-5 program are not actively involved in the investment business.
The E-2 visa program, on the other hand, allows an investor to start or purchase a business, and bring themselves and key employees into the U.S. An E-2 visa holder is either an owner of the business or someone employed by the business in a supervisory, executive, or very highly specialized skilled position. In other words, the applicant must play a very important role in the business enterprise such that they could not easily be replaced by a U.S. worker. There is no job creation requirement for E-2 applicants.
Owners and employees must be citizens of a limited number of countries with a Treaty of Trade and Commerce with the United States. Citizens of other countries are strictly ineligible for the E-2 visa. (While E-2 requirements look at an individual’s country of citizenship, EB-5 requirements look at an individual’s country of birth. Chinese and Indian nationals should note that while they do not qualify for E-2 visas and the current EB-5 backlog for applicants from these two countries is long, there are other U.S. immigration options and pathways available to them.) If the individual is an employee, the business owner must prove that they are essential to the business because they are a manager, an executive, or possess very specialized skills. If the applicant is the owner, they must prove various factors pertaining to the extent of their investment, the nature of their business, and their intentions in the U.S.
Owners of a business venture will need to show that they either own at least 50% of the business or own a smaller percentage but are employed by the business as a manager or executive. They will also need to show USCIS that the economic impact of the business will be significant, and that the business will be providing a tangible good or service to the U.S. public.
Finally, it is important to note that while there are set general requirements for E-2 visas, each U.S. consulate that adjudicates E-2 visa applications will have differing requirements and standards. It is crucial to consult with a licensed immigration attorney regarding each consulate’s E-2 standards.
Finding More Information
While the application process for an E-2 visa is complex (involving many case-specific issues and requirements), an applicant should have experienced legal representation working on their behalf in order to ease the process. At David Hirson & Partners, LLP, our attorneys are highly experienced and have helped a multitude of investors successfully obtain an E-2 visa in order to enter the U.S. Click here to contact us or call 949-383-5358) to schedule a consultation with us.