E-2 Treaty Investor visas are available to persons who are entering the U.S. "solely 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." As a precondition to the availability of the E-2 visa, the home country of the business owners must have a treaty with the US that allows American businesses to operate in that home country. An additional requirement is that at least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the U.S. and the home country have a ratified bilateral investment treaty (a list of these countries is set forth below). Employees of the enterprise who are working in management, executive or "essential" positions are eligible for the visa if: (1) the ownership breakdown meets this above test; AND (2) the employee is a national of the treaty country.
The
main requirements for an E-2 visa are:
The investment of the enterprise must be active - not passive.
This requirement means that the money which the enterprise invests must
be used to produce a real commodity or service. For example, an investment
in land would not be considered active, but if the investment were accompanied
by submission of development plans to appropriate authorities and contracts
for building, it would be considered an active investment. In order
to protect the applicant in the event that the visa is denied, the INS and
State Department allow the applicant to place the proposed investment in
an "escrow account." But if an escrow account is used, other
evidence showing the investment will be active must be presented with the
application. The investor must also manage the business and exercise
a controlling interest in the business.
The investment must be substantial - not marginal. While the word "substantial" is not defined by any particular dollar amount, the INS and the Department of State use one of two tests to see if this requirement is met. They require either that: (1) the amount invested be proportional to the total value of the business, or (2) that it be an amount considered necessary to establish a viable business in the field. Sometimes, the INS and State Department use a sliding scale that they are allowed to reference in determining whether an investment is actually "substantial." For example:
If the value of the business or the cost to start it is less than $500,000, a minimum 75% investment will be required.
If the value of the business or the cost to start the business is between $500,000 and $3 million, a minimum 50% investment will be required.
If the value of the business or the cost to start the business is over $3 million, a minimum 30% investment will be required.
In
addition, the investment cannot be marginal. In this regard,
the investment must generate more funds than just enough for the owner to
make a living and, ideally, should even create jobs for U.S. workers.
The E-2 visa applicant must have "nonimmigrant intent". This means that the applicant must intend to depart and leave the U.S.
after their authorized period of stay is over. However, unlike other
most other nonimmigrant visa categories, the applicant can meet this requirement
by simply providing the consulate with a statement indicating that they
have non-immigrant intent.
Unless the E-2 applicant is in the U.S. in another visa status and is seeking
to change to an E-2 visa, applications for E-2 visas are made directly to
the consulate and not through the INS. Each consulate has its own
version of an E visa questionnaire form. In addition, most consulates
require extensive documentation to support the E-2 application. The
length of time for which the visa will be issued is determined by agreements
between the U.S. and the treaty country. Visas may not be issued for
more than five years, but they may be renewed continuously without a limit
on stay in E-2 status. Thus, as long as all of the conditions of the
E-2 visa are met, the visa is indefinitely renewable. Spouses and
children of E-2s are entitled to visa status as well. However, E-2
family members may not work in the United States, unless they qualify under
some other category or regulation. Although E-2 family members are
not subject to removal (ie. deportation) proceedings if they work without
authorization, but they will be considered out of status and ineligible
to change or adjust their visa status in the U.S. However, there are
no restrictions on family members pursuing studies while in E-2 status.
The following countries have ratified investment treaties with the United
States. Nationals of these countries can apply for E-2 visa status:
Argentina
Australia
Austria
Armenia
Bangladesh
Belgium
Bosnia
Bulgaria
Canada
Cameroon
China (Taiwan)
Colombia
The Congo
Costa Rica
Croatia
Czech Republic
Egypt
Ethiopia
Estonia
Finland
France
Germany
Grenada
Georgia
Honduras
Iran
Ireland
Italy
Japan
Jamaica
Kazakhstan
Korea (South)
Kyrgyzstan
Liberia
Luxembourg
Macedonia
Mexico
Moldova
Morocco
Netherlands
Norway
Oman
Pakistan
Panama
Philippines
Poland
Romania
Senegal
Slovakia
Slovenia
Spain
Sri Lanka
Suriname
Sweden
Switzerland
Thailand
Togo
Trinidad & Tobago
Tunisia
Turkey
Ukraine
United Kingdom
Zaire
Bilateral investment treaties have been signed with the following countries, but have not been ratified by the U.S. Congress:
Azerbaijan
Belarus
Croatia
Haiti
Honduras
Jordan
Lithuania
Mozambique
Nicaragua
Russia
Uzbekistan
DOCUMENTS needed for E-2 Visa:
- A detailed business plan which covers the nature and purpose of the E-2 business, the initial investment, the source of the investment funds, growth projections and employment projections. Property, Equipment or Real Estate costs'
- Asset Purchase and Sale Agreements
- Mortgage or Loan documentation
- Financial Statements
- Articles of Incorportation (corporation) or Articles of Organization (LLC)
- Invoices, Orders, or Contracts between E-2 company and customers/suppliers
- Costs of inventory and materials
- Deeds or lease agreements
- Costs of employee wages
- Costs of legal, professional and licensing fees
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