- 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:
- “Be proportional to the total value of the particular enterprise in question” or
- “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:
- “Loans secured by the investors own assets,”
- “Unsecured loans,”
- “Cash reserves placed in a business account,”
- “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;
- He/she may be a “principal investor” and be responsible for the direction and development of the investment.
- He/she may serve as an executive or manager of the enterprise.
- 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:
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.