INTENDED PURPOSE OF VISA
The entry of a foreign national from a country having a bilateral investment treaty with the United States in order to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital. Visas may also be obtained for managers or employees with specialized knowledge who are also nationals of the treaty country.
E-2 (TREATY INVESTOR VISA)
Employment is permitted for the principal applicant by the U.S. Company. Accompanying spouse and children under 21 years of age may reside and study in the U.S. while the principal applicant maintains E-2 visa status.
IN ORDER TO QUALIFY
- The U.S. enterprise must be majority owned by nationals of a particular country having a bilateral investment treaty with the United States. At this time, the participating countries are: Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bosnia-Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo, Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay,
Philippines, Poland, Romania, Senegal, Singapore, Slovakia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia. (Please check with the attorney as countries may be added to or deleted from this list or you may check the US State Department’s current list.).
- The treaty investor must have established or be in the process of establishing an active business through investment. A passive investment such as the purchase of a home will not qualify for visa status.
- The investment must be substantial. In the case of a new business, the amount invested must be such as normally considered to establish a viable enterprise of the type contemplated. In the case of an existing
business, it must be proportional to the total value of the particular enterprise. While there is no required amount for investment, generally at least $100,000 is preferred. The funds invested must be considered “at risk”. Therefore, the amount of permitted capital invested that comes from loans (which are secured against business as opposed to personal assets) will depend upon the amount of personal monetary contribution to the enterprise. This factor is often tested on a sliding scale basis that can be evaluated by the attorney.
- The investment must create jobs for employees legal to work in the United States. It cannot simply create a job and income to support only the treaty investor and his or her family.
- The person seeking the visa must have a substantial role in the company. He or she must either serve as a manager, executive, person with specialized knowledge or simply to develop and direct the investment. If applying as a treaty investor, he or she must control at least 50% of the enterprise.
LENGTH OF VISA
This is a non-immigrant visa valid for between one and five years depending on what the consular officer reviewing the application grants. While the principal investor may renew the visa indefinitely (so long as the business conditions are maintained in the manners described above) he or she must nevertheless satisfy the consular officer that they will depart the U.S. upon expiration of the visa status.
The following list contains items that are recommended and generally
included in this type of application. Not all items may apply to your
particular situation. In addition, you may have items and materials that
would support your application that are not listed here. You should consult with the attorney to be certain.
- Documents Regarding the U.S. Company and Investment
- Articles of incorporation and corporate resolutions
- Share certificates
- Lease for business space
- Photographs of business space
(Please note that if a U.S. Company does not currently exist, the attorney can prepare the necessary documents to establish a new corporation.)
- Corporate financial statements
- Evidence of capitalization of U.S. company which may include: CD’s, security agreements, lines of credit,
promissory notes, certificates of borrowing, loan statements, guarantees, wire transfers, etc.
- Corporate tax returns
- Corporate bank statements
- Title to company owned property
- Payroll report for company’s employees (or other evidence of company’s employees)
- Promotional materials
- Several invoices to customers
- Several invoices for goods or services purchased by company
- Contracts with other businesses or customers
- Business plan (a particularly important piece of evidence in this process)
- General documents
- Copy of the treaty investor’s passport (as proof of citizenship of the treaty country).
- Resume as evidence of your business background (this is important because it must be shown that the treaty investor is capable and has the necessary experience as an investor to develop and direct the new investment in the United States).
- Evidence of personal assets (this may be required)
If the applicant is lawfully present in the United States, he or she may be able to apply for a change to E-2 status. Currently, the only office of the USCIS that is processing these cases is the California Service Center. This process is handled entirely by mail and no appearance by the applicant is necessary. If the applicant is outside of the U.S., the application is submitted to the U.S. Consulate located in the country of applicant’s nationality for processing. The second method of processing (Consular) is greatly preferred. The reason is that if a change to E-2 status is granted in the U.S. and the applicant leaves the U.S. and desires to re-enter, he or she must apply at the Consulate for an E-2 visa for re-entry. Processing using the Consulate avoids duplication of the procedure and takes less time. The Consulate will usually require a short interview of the applicant.
The E-2 is a non-immigrant visa that may be renewed indefinitely so long as the conditions that led to approval of the application continue to exist. While this visa does not lead to permanent resident status, it can nevertheless be maintained for many years. In order to obtain permanent residence from investment in an enterprise, the applicant must invest $1,000,000 (or in some cases $500,000) and employ ten full-time workers. There are very important distinctions between the non-immigrant treaty investor visa and the EB-5 immigrant investor visa. Please consult with the attorney before making a commitment to either opportunity.