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The E-2 program is one of the most flexible visa categories available to the United States.  It can even be used by recent college graduates who cannot obtain an H-1B work visa because of the H-1B cap.  However, it is also one of the least utilized visa categories.  If an individual or company can qualify under the E-2 program, it is our opinion that this is the approach that should be used.

 

  • Benefits of the E-2 Visa Process

     

    One of the most flexible employment-based visas available to the United States is the E-2 non-immigrant investor visa. This visa can be used by anyone from 76 different countries who wish to invest in the United States by opening a business. Some of the benefits of this visa include:

     

    • The E-2 visa process can be used by individuals or multinational corporations.
    • For corporations, the E-2 visa process is more flexible with regard to bringing in employees than the L-1B intra-company transfer visa.
    • There is no minimum investment so long as the investment is in an active, operating company (i.e., an investor cannot use an E-2 visa for passive investments, such as real estate investments).
    • Newly-graduated college students can use the E-2 visa process to open a company and work for their prospective H-1B sponsor as an independent contractor. This is essential if the number of H-1B work visas runs out as they have for the last several years.
    • An investor can remain in the United States for as long as their investment company remains economically viable. As such, there is no limit on how long someone can remain in the United States on an E-2 visa.
    • The actual investor can operate the business (i.e., you do not have to hire U.S. workers to run the business).
  • General Requirements

     

    1. The investor must be a national of a treaty country.

    2. The investment must be “substantial” (i.e., it must be sufficient to ensure the successful start up of the enterprise within five years). As such, the amount of the investment need not be large in many circumstances (see the “Misconceptions” discussion below).

    3. The investment must be in a “real operating enterprise”. Speculative or idle investment, such as real estate investments, does not qualify.

    4. The investment may not be “marginal”. This means that the company must generate more income than is required to provide a living for the investor, the investor must have an alternative source of income other than the company, or the company must economically benefit the United States by creating at least one new job for U.S. workers.

    5. The investment must be made using the investor’s personal funds or loans secured with the investor’s personal assets. Loans secured with the assets of the investment company are not allowed.  Gifts can also be used as a source of investment so long as there is no expectation that the investor will pay the gift back.

    6. The investor must be coming to the U.S. to direct or actually operate the company. If the applicant is not the principal investor, he or she must be employed in an “executive”, “managerial” or “essential skills” employee. Ordinary skilled and unskilled workers do not qualify for E-2 status.
  • Misconceptions About The E-2 Visa Process

     

    There is a major misconception about the E-2 visa category. Many people (and even attorneys) believe that a minimum investment of $50,000.00 USD is required to qualify for an E-2 visa.  This is not true.  An example in the U.S. State Department’s regulations discusses a $50,000.00 investment. However, this is just an example.  The actual standard is that sufficient funds must be invested to ensure the likelihood that the business will be successfully established within five years. This can be a much smaller investment than $50,000.00.  For example, a graphic designer need not invest nearly as much money to successfully establish a company than someone who is purchasing a retail business.

    The E-2 non-immigrant visa process is also oftentimes confused with the EB-5 “million dollar” investor green card process. These are not the same visas and do not require the same level of investment or employment of U.S. workers.

  • E-2 Investor Must Control the Company

     

    An E-2 investor must “direct and develop” (i.e., control) the E-2 company.  This can be shown either through ownership or through managerial control of the company.  For example, if a treaty national owns more than 50% of an E-2 company, then that treaty national, by definition, controls the company.  However, if a treaty national owns 50% of an E-2 company with a U.S. citizen or permanent resident, then neither party has a controlling interest in the company.  In this case, it must be shown that the treaty national has managerial control over the company.  This is more difficult to accomplish in a 50:50 ownership relationship.  For this reason, Thompson Immigration generally recommends that the foreign owner of an E-2 company own at least 51% of the company.

     

  • The Definition of an "Executive"

     

    An “executive” is an employee who:

     

    • Directs the management of the company or a major component or function of the company;
    • Establishes the goals and policies of the company, component or function;
    • Exercises wide latitude in discretionary decision-making; and
    • Receives only general supervision or direction from higher level executives, the Board of Directors, or stockholders of the organization.
  • The Definition of a "Manager"

     

    A “manager” is an employee who:

     

    • Manages a company, or a department, subdivision, function or component of the company;
    • Exercises supervisory control over the work of other supervisory, professional, or managers, or manages an essential function within the company, or a department or subdivision of the company;
    • If the manager supervises other employees, they must have authority to hire or fire employees, or recommend other personnel actions such as promotion and leave authorizations;
    • If the manager does not supervise other employees, then the manager must function at a senior level within the organizational hierarchy or with respect to the function managed; and
    • Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employee’s supervised are professionals.
  • The Definition of an "Essential Skills" Employee

     

    An "essential skills" employee is one that has special qualifications that make their work at the E-2 company “essential” to the efficient operation of the U.S. enterprise.  The determination of whether an employee is an “essential skills” employee requires the exercise of judgment.  It cannot be decided by the mechanical application of a bright-line test.  By its very nature, "essentiality" must be assessed on the particular facts in each case. In assessing the specialized skills of an employee and their essentiality, the government will consider the following factors:

     

    • The degree of proven expertise of the employee in the area of specialization;
    • The uniqueness of the specific skills;
    • The length of experience or training with the company;
    • The function of the job to which the employee is destined; and
    • The salary such special expertise can command.
  • Family Members

     

    The spouse and unmarried minor children of any E-2 visa holder may be admitted as an E-2 dependent non-immigrant.  Family members must make a separate filing with the USCIS and/or U.S. Embassy or consulate to obtain E-2 status.  A very significant benefit of the E-2 visa process is that the spouse of an E-2 visa holder is authorized to work in the United States.  Any E-2 family member may attend school.

  • The E-2 Visa Process

     

    Unlike most non-immigrant visas, a foreign national seeking to enter the U.S. on an E-2 treaty investor visa is not required to obtain prior approval from the U.S. Citizenship and Immigration Services ("USCIS").  They can apply directly to a U.S. Embassy in their home country.  However, if an E-2 candidate is in the United States, he or she will typically apply with the USCIS and then file for an E-2 visa stamp at the U.S. Embassy in their home country.  It is important to note that an applicant’s home country is the only country where an E-2 investor may apply for an E-2 visa.

     

    • For a new company, the initial E-2 visa is usually valid for two years.
    • For financially established companies, the E-2 visa is valid for five years.  This means that once a company is financially viable the investor need only renew his or her E-2 visa every five years; with each entry into the United States being valid for two years.

    Moreover, there is no limit to the number of times an E-2 visa can be renewed, so long as the company still qualifies as an E-2 company.  As such, a foreign investor can remain in the United States their entire career.

  • List of E-2 Countries

     

    Albania

    Argentina

    Armenia

    Australia

    Austria

    Azerbaijan

    Bahrain

    Bangladesh

    Belgium

    Bolivia

    Bosnia & Herzegovina

    Bulgaria

    Cameroon

    Canada

    Chile

    Columbia

    Congo (Brazzaville)

    Congo (Kinshasa)

    Costa Rica

     

    Croatia

    Czech Republic

    Denmark

    Ecuador

    Egypt

    Estonia

    Ethiopia

    Finland

    France

    Georgia

    Germany

    Grenada

    Honduras

    Iran

    Ireland

    Italy

    Jamaica

    Japan

    Jordan

    Kazakhstan

     

    Kosovo

    Kyrgyzstan

    Latvia

    Liberia

    Lithuania

    Luxembourg

    Macedonia

    Mexico

    Moldova

    Mongolia

    Montenegro

    Morocco

    Netherlands

    Norway

    Oman

    Pakistan

    Panama

    Paraguay

    Philippines

    Poland

     

    Romania

    Senegal

    Singapore

    Slovak Republic

    Slovenia

    South Korea

    Spain

    Sri Lanka

    Suriname

    Sweden

    Switzerland

    Taiwan

    Thailand

    Togo

    Trinidad & Tobago

    Tunisia

    Turkey

    Ukraine

    United Kingdom

    Yugoslavia

     

     

 

 

Non-Immigrant Investor Visas

 

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