Soulpreneurs – Everything You Need to Know About E-2!

Everything You Need to Know About E-2

If you are a “soulpreneur” and have a great business structure to start-up a new business in the United States, but do not know which visa will be the most suitable for you, in this article, we can answer some of your questions.

What is an E-2?

E-2 visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. E-2 visa is a non-immigrant visa for investors, entrepreneurs, and people looking to run a business in the United States – we call them dreamers and want to be a part of their dreams!

Since the E-2 visa is a non-immigrant visa category, the E-2 visa is temporary and does not directly lead to a green card.

Although there is a lengthy list of requirements for E-2 eligibility, these standards are depending on a great amount of judgment and discretion. With that being said, in some cases, you may not be eligible for E-2 even though you provide all documents. The burden of proof to establish status rests with the applicant.

The applicant must be coming to the United States solely to engage in substantial trade principally between the United States and the treaty country. Trade is defined as transactions involving goods and services, as well as technology-related services.

An applicant must invest, or be in the process of investing, significant capital in an enterprise s/he will direct, and which will not be a marginal enterprise entered into solely to make a living.

There is no limit on the renewal of the E-2 visa.

The applicant does not have to be in the United States to apply for E-2. There are two ways to apply for E-2:

• Get an E2 visa at a US Consulate outside of the US
• Change status to E2 visa status while lawfully present in the US

Benefits of E-2 Visa

The applicants:

• Spouse, unmarried children under 21 years old can also qualify for E-2 visas
• The spouse can apply for work authorization
• Children can go to school in the United States

Requirements of E-2 Visa

To qualify for E-2 classification, the applicant must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation. (Please see below the list of treaty countries)
• Maintain E-2 business actively, for-profit business
• Have invested, or to be actively in the process of investing
• Have the intent to depart once E-2 status ends.

The applicant does not necessarily need a physical office space to qualify for an E-2 visa.  Although having physical office space may be relevant in determining whether the requirements for an E visa have been met, it is not a requirement to qualify for the visa.

A trader or investor with the nationality of a treaty country but who holds U.S. LPR status does not qualify to bring in employees under INA 101(a)(15)(E). Moreover, stock shares owned by U.S. permanent resident aliens cannot be considered in determining the nationality of the business.

Investment

• Funds must be lawful
• There is NO set minimum investment amount to qualify. The Foreign Affairs Manual specifically states: “No set dollar figural constitutes a minimum amount of investment to be considered ‘substantial’ for E-2 visa purposes.”
• Funds must be already invested in the E-2 business at the time of filing or they must be in process of being invested.
• A piece of residential real estate or an investment in the stock market will not work. Investments should be active, not passive.
• The investment must be irrevocably committed to the E2 business, must be at-risk, and must be spent on the business and operation

Marginality requirement

• An E-2 enterprise does not have to be a large business that hires dozens of employees, in some cases hiring at least one employee can be sufficient.
• The cores of E-2 visa are the creation of job opportunities and positive economic impact, even though the law does not specifically mention.
• For start-ups, submitting a comprehensive business structure that clearly states the projected future earning will satisfy the marginality requirement. The business structure should be detailed and accurate, supported by strong evidence.

Who Can be the Investor?

An individual or foreign business can invest in a United States business or establish a company.

Investment as an individual

• The applicant will be considered as the principal investor
• If the applicant is a dual national, s/he may still qualify for an E2 visa based on the applicant’s nationality of the treaty country.

Investment by foreign business

• The foreign business will be considered as the E2 principal investor.
• The nationality of the business is determine based on the individual owners of the business.
• The business must be at least 50% owned by nationals of the treaty country

How long can you stay in the US on an E2 visa?

• The validity of visa ranges from 1 to 5 years however, it doesn’t mean that the treaty investor can stay in the US for 5 years. With an E-2 visa, the investor is granted 2 years of status each time the investor enters the US.
• With a valid E2 visa, an investor can exit and re-enter the US to get an additional 2 years of status.
• There is no limit to the number of times the investor can renew the E2 visa as long as company meets all the E-2 visa requirements.

How long does it take to get an E2 Visa?

There are 3 main steps of E-2 visa, document gathering, legal preparation, and consular processing or change of status. Every step has its waiting periods and processing times. While the documents gathering process depends on how fast and accurate the applicant provides the documents, the consular process depends on which embassy you are applying to the E-2 visa.

E-2 Visa Employees

The principal applicant can obtain E-2 visas for qualifying employees who are the same nationality as the investor and the applicant must be able to prove that the employee is necessary for the fulfillment of the applicant’s endeavor. This is easily proven if he or she is a manager or executive, but can also be proven if he or she has specialized knowledge that makes them instrumental to the operation or development of the enterprise.

List of E2 Treaty Countries

Major countries that do not have an E2 Treaty with the United States: Brazil, China, India, Russia.

Sources

• https://fam.state.gov/fam/09FAM/09FAM040209.html
• https://www.law.cornell.edu/cfr/text/22/41.51
• https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors