E-1/E-2 Visa Questions & Answers

An E-1 Visa is a Visa Classification that is available to foreign nationals who wish to live in the U.S. and be involved in international trade with the U.S. and their home country.  An E-2 allows the foreign national to develop and direct the operations of a business.  The business can be large or small and an E Visa is a great Visa option for those who want to start a business.  In order to qualify for the Visa, applicants must meet specific requirements and these requirements are outlined below:

You Must Have Invested or Be Actively in the Process of Investing

In order to satisfy this part of the test, you must fulfill three requirements.

i)Show Legitimate Possession and Control of the Funds

You must invest funds that you have obtained from a lawful means.  While dollar for dollar accounting is not required, you must prove to the Government that you either saved the money, were given the money as a gift or legitimately earned the money.  There are various forms of proof that will satisfy this requirement including tax returns, bank statements, investment accounts & more.  For some countries, this can be problematic if records are not readily available or the country is subject to a high degree of corruption.

ii)All Funds Invested are “At Risk” & Irrevocably Committed

All of the assets invested must be personal assets subject to risk of loss and this really means that you actually have something to lose.  Loans are fine but you must be on the hook if there is a loss and this requirement forces you to sign contracts and/or spend money prior to the approval of the Visa.   At risk money does include credit card debt or other loans as long as those debts are not secured by business assets or in the name of a limited liability business.  This provision is one of the “scarier” provisions related to an E-2 Visa.

iii) You Must Be Close to The Start of Business

While you cannot accept money from clients or “do business” until the Visa is approved, you must be close to starting your business.  The idea here is that the U.S. government does not want to approve Visas for people who “may” set up a business in the U.S. or who have a “desire” to start a business.   As such, your business must be at the start up ready phase.  This means you should have a signed lease, your business bank account should be set up, you should have a website, and you should have purchased whatever you need to get the business up and running.

You Must Be in a Position to “Develop & Direct” the Business With Skills

You cannot get the E-2 Visa unless you are the one that is going to direct and run the business. Also, you must have the appropriate skill set such that the Government has faith that the business will be viable. For example, you would likely not have much success getting and E-2 Visa if you wanted to open a restaurant if the only experience you had was eating in a restaurant.  Normally, your educational background and experience should suggest that you will be in a position to make the business a success.

Your Investment Must Be Substantial

The U.S. Government does not have a predetermined amount that they consider substantial.  As such, your investment could be as low as $15,000 or as high as millions. You should note that idle cash sitting in a business account is NOT considered an investment but the government will consider a reasonable amount of working capital as part of an investment.  You should ensure that you keep records of all of your expenditures as the government will want to see them.

Your Investment & Business Cannot Be Marginal

This means that the business cannot be set up so that it provides a means of living just for yourself and family.  You can demonstrate a business is not marginal by putting together a business plan that shows growth over a 5-year period or by showing that you plan to hire employees in the future.

You Must Intend to Return to Your Home Country After Expiration

In recent years, the USCIS is requiring applicants to show ties to their home country to demonstrate their intent to return home once their E visa is no longer valid.  Although home ownership in a foreign land is not required, it would help to show that the applicant does have the intent to return home.

Does an E-2 Visa Lead to A Green Card?

No.  An E-2 Visa is a non-immigrant Visa and does NOT lead to a Green Card.  While it does not lead to a green card, it is often approved for a period of 2 to 5 years.  As long as the business is still in operation you can renew the Visa indefinitely.

Do I have to hire U.S. employees in Order to Get an E-2 Visa?

There is no required number of U.S. workers that have to be hired to work in the business but usually the business should employ at least some employees in the U.S. as reasonably necessary for the business to operate.  If no workers are hired, the investment may be considered as a business that is set up only to support the E-2 applicant and his/her family. (The legal term for this is “Marginal” and it is not permitted).  You do not have to hire the workers immediately and your 5-year business plan should detail exactly when you plan to hire the employees.

Is an E-2 Visa the Visa where I have to Invest 1 Million dollars ($1,000,000) and hire 10 employees?

No. The E-2 Visa is often confused with an EB-5 Visa. The EB-5 Visa is a completely different Immigrant (Green Card) Visa.  In contrast to an EB-5 Visa, an E-2 Visa does not require a specific amount of Investment and does not have a specific number of employees that you have to hire.

Can I get an E-2 Visa with a low amount of Investment? Is there a minimum amount of an Investment?

There is no required Investment dollar amount.   If your business is a service business, the investment that is required will be much lower than if your business is a capital-intensive business such as building a hotel.

Can I borrow money to start the business?

Yes. Unlike the EB-5 Visa, borrowing money is fine for this Visa as long as the business is not overly leveraged.

Is there a particular type of business that I have to start or buy?

No. Any for profit active business type is fine. (eg. drug store, law firm, consulting agency, car dealership, hair salon, etc.).

Do I have to make a Business Plan to Get an E-2 Visa?

Yes.  A 5-year business plan is required and the business plan is a key element that immigration officials consider when they review your Visa petition.

Does an Investment in Real Estate Qualify for an E-2 Visa? Can I buy a Home and get an E-2 Visa?

No.  The E-2 Visa can be obtained by either purchasing an existing business or creating a new business in the United States and the business must be an “active” business.  This excludes passive investments like real-estate or owning stock.  Your business must also make money and as such not-for-profit enterprises are excluded.

Can I bring my family and can they work in the U.S.?

Your spouse can get an E-2 visas and he/she is eligible to apply for an “Employment Authorization Document” (referred to as an EAD) to work in the United States after obtaining E-2 status.   He/She can work in any field and this is a significant advantage of an E-2 Visa as many other non-immigrant visas, like a TN Visa and an H-1B Visa, do not allow a spouse to work in the U.S.

Which countries are eligible to get an E-2 Visa?

The E-2 Investor Trader Visa is only to people from the countries that the U.S. has a Treaty with. This is a link to the countries where E-2 is allowed:  https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

How long does it take to get an E-2 Visa?

An E-2 Visa is a very document intensive petition.  In addition to a number of government forms, the Visa requires the submission of a binder full of documentation that is often quite lengthy.  Once the documentation is prepared, the processing time depends on the processing time at the consulate that is located in the applicant’s country.  This could range from 3 weeks to 3 months (or longer).

Do I need a lawyer?

Yes.   Like most Immigration laws, the E-2 regulations are complicated and you must demonstrate to immigration officials that you have met all of the legal elements.  In addition, the documentation requirements for an E-2 Visa are quite extensive and a legal brief must be written linking all of the elements of the Statute to your case.