Van Der Hout LLP

E-2 Investors

Investor Visas may be extremely useful for foreign nationals who own or manage businesses in the United States. The status is in most cases available only to nationals of countries which have executed treaties for bilateral investment with the United States. Although there are several ways a foreign national may qualify for E-2 status, the following outline generally describes the criteria for eligibility:

  • The foreign national must qualify as a citizen of a “treaty” country.
    • A bilateral investment treaty must exist between the United States and the country of nationality of the foreign company or investor.
    • Investors and Employees of an investing company must be citizens of the treaty country.
    • The “nationality” of an investor company is determined by the nationality of its owners. At least 50% of the ownership of the company must be by foreign nationals who are citizens of the treaty country;
  • The Investment must be active and substantial
    • The Investor must make an actual, active investment of irrevocable funds;An “active” investment is defined as “a real operating enterprise productive of some service or commodity.” There must be a real operating enterprise.
    • The Investment must be substantial; neither the INS nor the DOS have precisely defined “substantial” with a specific dollar amount. To determine substantiality, the investment must:
      1. “Be proportional to the total value of the particular enterprise in question” or
      2. “Be an amount normally considered necessary to establish a viable enterprise of the type contemplated.”
    • The investor or investing company must be personally at risk. Thus investments may include:
      1. “Loans secured by the investors own assets,”
      2. “Unsecured loans,”
      3. “Cash reserves placed in a business account,”
      4. “Value of purchased equipment and property;”
    • The investment cannot be “marginal in nature” and in most cases must create jobs for United States workers (usually within five years);
    • The person seeking an E-2 visa must be filling a key role in the enterprise or company;
      1. He/she may be a “principal investor” and be responsible for the direction and development of the investment.
      2. He/she may serve as an executive or manager of the enterprise.
      3. He/she may serve in a capacity which requires essential skills or specialized knowledge of the company’s product or service.
  • Extensive documentation demonstrating that the above criteria are met must be submitted to the INS or to an American consulate abroad in order to maximize the chances for a successful application. The following enumerates types of documentation which may be presented to demonstrate eligibility for an E-2 Visa:
    • Contract for Sale of Business or partnership agreement (if applicable).
    • Evidence of a money transfer from abroad; for extension of status, evidence of additional investment/changes relating to business.
    • Copies of business license, permits, operating license, liquor license, etc.
    • Copies of financial statement, balance sheet, most recent income tax return for business (or personal if sole proprietorship), local tax assessments etc.
    • Copies of quarterly payroll reports, information relating to names, positions, and immigration status of all employees and owners including job title, job descriptions, salary, etc.
    • Evidence that business is currently in operation:

      (Copies only)
      bank statements
      invoices for supplies, equipment, etc.
      brochures, promotional materials
      newspaper reviews, articles, etc.

    • Copies of business plan, investment plan, annual report, balance sheets, financial statement (if applicable).
    • Detailed job description(s) for principal applicant and any other employees who are here in the United States on non-immigrant visas.
    • Resume/degrees/evidence of special skills and experience for principals/investors or employees (if applicable).
    • Any other information which might be relevant to the business which would tend to prove that you are directing and developing an investment in the United States.
  • To meet the standard one must show that each is a highly trained individual who is familiar with the company’s product and whose presence is necessary to accomplish one of the following:
    • Establish the enterprise, or
    • Train or supervise persons serving in technical positions, such as manufacturing, maintenance or repair of the product, or
    • Continuously monitor and develop product improvement and quality control.

A key determination which will be made by the consular officer in deciding whether to grant the E-2 visa is whether U.S. workers are available who have the required skills to fill the positions.

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