In this series of articles, we will seek to debunk some popular misconceptions and myths surrounding various US visa categories. In this article, we will focus on the E-2 Treaty Investor Visa category.

“Surely I need to receive an E-2 Treaty Investor visa before entering the US, so I can set up the company?”

No. If you seek to file an application for an E-2 Treaty Investor visa based on a business start-up (as opposed to a business acquisition), the US Embassy will require the US company to be set up in advance of the E-2 visa application and, further, the US enterprise must be either “operational or close to operational”.

If you are contemplating an E-2 visa application, we would recommend that you contact us, so we can devise an investment strategy which will enable you to maximize your prospects of successfully obtaining an E-2 visa, while equally safeguarding your position, in the event your E-2 visa application is unsuccessful.

 

 “I have $50,000 in the bank. Surely I qualify for an E-2 Treaty Investor visa?”

In short, no. In order to qualify for the E-2 Treaty Investor visa, the Treaty Investor (whether an individual or a UK parent company or affiliate) must demonstrate (a) that “substantial” funds have been invested in a US enterprise and (b) that the funds have been “irrevocably committed” to the enterprise. Uncommitted funds in a US bank account, without more, will not allow an investor to qualify for an E-2 Treaty Investor visa. In any event, an investment of $50,000 may not satisfy the requirement for the investment to be “substantial”.

“I heard you need to invest $500,000 in a US company to obtain an E-2 Treaty Investor visa. Is that correct?”

No. In order to qualify for the E-2 Treaty Investor visa, the Treaty Investor must demonstrate that their investment in the US enterprise is “substantial”. The US Embassy determines the substantiality of the investment with reference to a proportionality test. In short, the US Embassy compares the level of funds which have been invested in the US enterprise, with the level of funds which would need to be invested, in order to render the business operational. Subject to the nature of the business, the substantiality requirement may be met with an investment of $100,000.

The $500,000 figure is likely to be a reference to the EB-5 visa category, which is an entirely separate visa category (an Immigrant Visa category), with different qualifying criteria.

 “Can I invest in stocks and shares or undeveloped land, with potential for appreciation in value?”

No. The US Embassy requires that the E-2 Treaty Investor, whether a company or a natural person, invests in a “real and active” commercial enterprise. A passive investment will not lead to qualification for the E-2 Treaty Investor visa.

If you are unsure if the proposed US enterprise will constitute a “real and active” commercial enterprise for E-2 purposes, we would advice that contact us in order to seek advice on your position from a licensed US immigration attorney.

“Provided my US business (whether a business start up, an acquisition or a US subsidiary or affiliate of a UK based company) generates sufficient revenue to support my family and I, I should qualify for an E-2 visa. Is that correct?”

No. During the E-2 Treaty Investor visa application process, the applicant must demonstrate to the US Embassy that the proposed E-2 enterprise is not a marginal enterprise solely to “provide a minimal living for the treaty investor and his or her family”.

In summary, the applicant must demonstrate that the proposed E-2 enterprise has the potential to generate wealth and employment opportunities and does not merely exist to provide a minimal income for the treaty investor and his/her family. A strong 5 year immigration business plan will demonstrate the future capacity of the US enterprise to make a significant economic contribution.

“How long will it take for me to obtain a Green Card after applying for the E-2 Treaty Investor visa?”

The E-2 Treaty Investor visa is a non-immigrant visa. As such, it does not confer US lawful permanent resident status and does not provide a direct route to a Green Card. However, the E-2 Treaty Investor visa is constantly renewable so, while it is a non-immigrant visa, an E-2 Treaty Investor visa holder could potentially reside in the US on the E-2 visa for several decades for the purpose of operating the US business, provided he/she continues to meet E-2 requirements at the point of renewal.

It is also noteworthy that an E-2 visa holder may become eligible for an Immigrant Visa in due course (for example, the EB-1 C or EB-5 visas), subject to their circumstances. If you are interested in exploring potential Green Card options arising from investment in the US or from your involvement in a US company, we would recommend that you contact us in order to discuss your position further.

Davies Legal Immigration

At Davies Legal Immigration, we offer a “one stop shop” for all aspects of US business immigration. Our team comprises US immigration attorneys, a Master of Business Administration, a Doctor of Business and a Certified Public Accountant. We offer a variety of fixed fee packages tailored to your unique position and offer innovative immigration solutions. Call now to discuss your case with a licensed US immigration attorney and take the first steps towards achieving your own American Dream.

 

Published: 4th October 2018