What is an E-2 Visa and Who Qualifies?
An E-2 is a visa is for a foreign national of a “investor treaty” country, coming to the US to direct the operations of an enterprise in which the investor has invested or is actively in the process of investing a substantial amount of capital. This visa may also be obtained by key employees of the business. Key considerations include: i) whether the foreigner is a national for a country that has an E-2 investor treaty, ii) that the business is 50% owned by foreigners of the treaty country, iii) that the foreigner is either a 50% owner or a key employee of the company, iv) that and that the investment is “substantial.”
In order to determine if the foreigner is a national of a qualified country, we must refer to Volume 9 of the Foreign Affairs Manual, section 41.51, Ex. 1. If the foreign national’s country is not on this list, then E-2 is not an option.
Establishing that at least 50% of the US business is owned by eligible foreigners obviously depends on the nationality of the owners. Interestingly enough, however, is that if one of the owners is a US lawful permanent resident, that person’s ownership is not considered to be that of a foreigner, even if that person is a citizen of a qualifying treaty trade eligible country.
While an owner who owns at least 50% of the US business is eligible for E-2, “key employees” are also eligible. A key employee must prove that they are either an “essential skills” worker whose skills are essential to the trading enterprise or key executives.
Proving “substantial investment” is not a precise art because the regulations do not specifically define “substantial.” At a minimum, the investment should produce a return that is higher than a mere income to support the investor and her/her family. Three factors to consider are 1) dollars invested ($200K is a reasonably safe minimum, but some have obtained E-2 visas on initial investments as small as $50K), 2) proof that the amount is enough to capitalize business functions (this obviously varies by business), and 3) the investment should go beyond marginal job creation (that is, at least beyond creating a job just for the investor).
When can I Obtain an E-2 Visa?
Unlike H-1B visas, there is no quota on the number of E-2 visas which may be issued every year, therefore it can be obtained any time of the year. Premium processing, in which the petition will be processed within 15 calendar days, is also available.
What are the Advantages and Limitations of an E-2?
An advantage of the E-2 visa over work visas like H-1B is that it does not require any specific educational background. You may also travel in and out of the US or remain in the US continuously until your E-2 visa expires. The E-2 visa may initially be valid up to 5 years, with the possibility of 2 year extensions. The duration of status, however, can only be for a maximum of 2 years, which means that the E-2 visa holder has to depart the US and reenter to extend their status or apply for an extension of status by filing such an application in the US. A big advantage over H-1B and L-1A/L-1B is that you may extend the E-2 indefinitely. Some people consider it close to having green card status.
One limitation to E-2 is that it is a “semi-dual intent” visa. The Department of State believes it is not a dual intent visa, therefore, if you seek a visa from a consulate/embassy, and you have a green card petition pending, you are unlikely to obtain the visa. The US Citizenship and Immigration Service, however, does recognize E-2 as dual intent, therefore it is possible to obtain E-2 status extensions in the US while a green card petition is pending. Another limitation is that dependents in the US are unable to obtain work authorization.
What is the Attorney’s Role in an E-2 Application?
E-2 visa applications are difficult to document and can be painstakingly time intensive. Proving “substantial investment” is also especially challenging when the amount of investment is not toward the higher end. In such cases, a strong argument must be made that such investment is substantial in the particular business based on the nature of the business. Knowledge of what the immigration service or department of state expects to receive from the petitioner is essential to success. In some consulates, there are particular formatting requirements that if the applicant fails to meet, the case will be immediately rejected.
To discuss E-2 visas and other alternatives with an experienced immigration lawyer from the Shah Peerally Law Group, feel free to contact us by email or call us at 510-742-5887.
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“I found Shah on the internet looking for an immigration lawyer around the bay area. I had some “bad” experience with a previous lawyer that was more expensive (they handle immigration for large internet companies) and was not responsive to a smaller company (we’re a startup). I gave Shah an H1B visa to start our relation. How surprised was I when we got it approved the first time around. (The same case was not approved with the previous lawyer. Immigration requested more docs). I gave him another visa for one of our canadian recruit. Once again, top service. I then asked him to file an E2 visa for me. Perfect service and of course, accepted the first tiime around. No additional docs requested from the consulate. – Saad L.“
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