E2 Visa - The Treaty Investor Visa in the United States

What is an E2 visa?

The E2 visa, also known as the Investor Visa, is a non-immigrant visa that allows foreign nationals to live in the United States with their spouse and children under the age of 21. To be eligible for this visa, the applicant must be from a country with a specific E2 treaty with the United States, must plan to create or buy a business and create jobs, and must be the one running the business. The E2 visa is typically granted for a period of up to 60 months, although this can vary depending on the applicant's home country (for example, French citizens are only granted visas for 25 months). Spouses and children under 21 are also able to live in the United States on this visa. The E2 visa is applied for at the U.S. Embassy in the applicant's home country, and requires the submission of a complete application file including a business plan, often prepared by an immigration attorney.

E2 Visa

How to get an E2 investor visa? What are the E2 visa requirements?

To obtain this visa, the applicant must:

  1. Be a citizen of a country that has signed a treaty allowing for the issuance of E2 visas.
  2. Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide business in the United States. It can be a new startup business or the purchase of an existing business.
  3. Intend to come to the United States solely to develop and manage this business. The applicant must own at least 50% of the company's shares and have a management role in the business.
  4. Ensure that the business is not marginal, meaning it has the ability to generate more than a minimum standard of living for the applicant and their family, and it must have the necessary licenses or authorization for its market.
  5. Apply for an E2 visa at a U.S. Embassy, ideally with the assistance of an immigration attorney.

The funds that are invested in the business must be “at risk”, with the goal of making a profit, but with the understanding that they may be lost if the business fails. The applicant must also prove that the funds were obtained lawfully. Note: "Invested" funds means "spent" funds, not just deposited in a U.S. account.

A substantial amount of funds means:

  • Substantial in relation to the total cost of the transaction, whether it is a business start-up or buyout.
  • Sufficient to confirm that the applicant is doing everything possible to make the business successful.
  • Sufficient to ensure that the business has a chance of success depending on its field of activity (not all activities require the same initial investment).

A "bona fide" business refers to a legitimate enterprise that operates regularly to provide goods or services with the intention of generating profit. It must be more than an "empty shell" and the business's activities must be legal. The company must also possess the appropriate licenses and permissions for its market. It is important to thoroughly verify the required licenses for the business's operations in the state in which it plans to establish itself.

Additionally, the business must not be considered marginal. According to the U.S. Citizenship and Immigration Services (USCIS), a marginal business is one that lacks or will lack the ability to provide more than the minimum standard of living for the applicant and their family. For start-ups, it may be challenging in the first few years, but this level should be achieved within five years of obtaining the visa. The number of employees in the business may also be a factor in determining if it is marginal. For businesses that have been in operation for a long time and have never had any employees, it will be more challenging to demonstrate that you will hire staff. In our opinion, it is advisable to avoid presenting a business buyout with fewer than two employees.

Finally, the applicant must have a significant role in the company, leading and ensuring its development. This does not necessarily require constant presence, but it does require evidence that the applicant is responsible for making important, strategic, and operational decisions.

A key question regarding the E2 visa is whether the applicant will be able to develop and run the business. There have been instances where the applicant's level of English has led to a negative response and the denial of the visa. In these cases, the officer determined that the applicant's English proficiency would not allow them to effectively manage a company in the United States. While the conditions for obtaining an E2 visa have not changed, the officer has complete discretion in interpreting them. It is important to note that the embassy has the final say in granting the visa.

E2 Visa Treaties: A List of Countries with Agreements with the United States

There are 78 countries that have an E2 visa treaty with the United States. The complete list can be found here on the website of the US Department of State's Bureau of Consular Affairs. Some countries, such as Portugal and Israel, have recently obtained this agreement, although the duration granted to visa applicants from Portugal is not yet known. It is worth noting that the duration of the visa can vary for different countries. For example, Mexico has recently seen an increase in duration, while France has experienced a decrease from 60 months to 25 months in 2019.

E2 treaty countries

How long is the E2 Visa valid for?

The duration of the E2 visa varies based on the applicant's citizenship. For example, a Swiss citizen may receive a maximum duration of 4 years, while a Belgian citizen may receive 5 years, and a Canadian citizen may receive 5 years. However, a French citizen may only receive 25 months. It is important to note that individuals with multiple citizenship should apply for the visa of the citizenship that provides the longest duration. A list of durations by country can be found here: Reciprocity Visa E2.

Pros of the E2 Visa

  • The E2 visa allows nationals from 75 countries to reside and make money in the United States.
  • There is no strict minimum investment requirement, although applications for less than $80,000.00 have a low likelihood of success and an investment of at least $150,000.00 is preferred to increase the chances of approval.
  • The spouse of the E2 visa holder will be granted an "E2 dependent" visa, which allows them to obtain work authorization in the United States (I94S).
  • The E2 visa holder's children will also be granted an E2 dependent visa and will be able to attend school until age 21. In some states, they may be eligible for the more favorable "in-state" rate at the university rather than the foreign rate.
  • The E2 visa holder has the flexibility to travel and re-enter the country as long as the visa is valid, with a new 2-year I94 residence permit issued each time they pass through customs.
  • The E2 visa provides access to health insurance under Obamacare and the tax credit, making it more affordable.

Cons of the E2 Visa

  • If the company that justified the E2 visa is not successful, the chances of renewal are low (see renewal information below).
  • The holder of the visa can only work for the company that sponsored the visa.
  • If the company disappears or changes ownership (through bankruptcy or resale), the E2 visa holder must leave the country. However, they may request an extension of their E2 status from the U.S. Citizenship and Immigration Services (USCIS) if they take over another business.
  • The children of the applicant, upon reaching 21 years of age, must obtain their own visa or leave the country and are not allowed to work in the United States while on their parents' E2 visa.
  • The E2 visa does not lead to a green card and alternative methods, such as EB1, EB2 NIW, EB5, the lottery, or marriage, must be pursued to obtain permanent residence. It is a nonimmigrant visa.
  • The investment must be made entirely in cash. While it is theoretically possible to use a partial bank loan, it is uncommon for American banks to grant professional loans to visa applicants.

The E2 Visa: A Nonimmigrant Visa

It is important to note that the E2 visa is a nonimmigrant visa. This means that it allows you to live in the United States, run a business, and raise your children, but it does not allow you to permanently immigrate to the US. An E2 visa has a start and end date and can be renewed indefinitely, but it will never allow you to obtain a green card or citizenship. To do so, you will need to switch to a different status.

There are many incorrect claims made by websites that I would describe as "dream sellers," suggesting that obtaining American citizenship after arriving on an E2 visa is easy. While it is possible to switch to another status, it is, in my opinion, difficult. In my experience, based on what I have seen and read as it is impossible to find official figures, it is my belief that less than 25% of people who come to the US on an E2 visa ultimately succeed in obtaining permanent residency or citizenship.

The E2 Visa Application

The E2 visa application should be made at a U.S. embassy, preferably in the applicant's home country, although it may be possible to apply at an embassy in a different country if the applicant resides there.

The application for an E2 visa is made in writing, based on a complete file that includes justification for the investment, a summary letter, and a business plan. It can be completed by the applicant or a lawyer. It is highly recommended to use a lawyer for this process. Some individuals may refer to themselves as "immigration consultants," but according to the law, their role is limited to assisting with form completion and translation for a small fee. They are not permitted to provide legal advice, as they are not lawyers.

After submitting your application to the embassy (in electronic PDF form), it typically takes 2 to 10 weeks for the embassy to process your application and schedule an interview. The average processing time in every embassy can be seen check here: Visa Appointments Wait Times

The interview usually lasts 10 to 30 minutes and is generally a simple formality if your file has been properly prepared in advance. The immigration officer will ask you questions about your project and personal questions to determine if your project is realistic and meets the requirements for obtaining a visa. At the end of the interview, you will receive your E2 visa and the adventure can begin.

It is important to note that the E2 visa is only the key to entry and does not guarantee the success of your project. Your preparation, dynamism, adaptation to the market, mental capacity, stress management skills, and ability to question and think critically are all important assets to ensure the success of your project.

E2 Visa from a consulate or E2 Status from the USCIS: What is the Difference?

Instead of applying for an E2 visa at an embassy, some individuals who are already in the U.S. with another status (such as a B1/B2 visa or student visa) apply for an adjustment of status directly with the U.S. Citizenship and Immigration Services (USCIS). This adjustment is granted for a maximum of two years. In our opinion, it has one major disadvantage: it does not allow the individual to leave the U.S. (as it is not a visa), so they are restricted to U.S. territory. In this case, we refer to "E2 status" rather than an "E2 visa." This is also referred to as E2 Visa Consular Processing versus Change of Status.

E2 Essential Employee Visa: Bringing in Staff

In some cases, it is also possible to apply for a visa for employees. There are two recognized cases:

  • The employee is to be an executive of the company and will actually manage a team of people. In this case, the employee must have "executive or supervisory character."
  • The employee has specific qualifications that are difficult to find in the U.S. (or even impossible to find), making them indispensable. In this case, we refer to "special qualifications" or "essential skills."

This E2 "essential employee" visa is issued for the same duration as the E2 investor visa.

I have seen this visa granted in the restaurant, bakery, and hairdressing industries for "essential skills" and in the computer industry for "executive characters."

In recent months, I have noticed a tightening of requirements for essential skills visas, similar to those for investor visas. It is important to clearly demonstrate any special skills or qualifications you have that surpass those of personnel available in the US, and to not take the notion of essential employee lightly. The level of education also seems to be significant. For individuals who will be managers, higher degrees (such as a Bachelor's or Master's) and experience appear to be essential.

One benefit for the company (and a clear disadvantage for the employee) is that the holder of an E2 essential employee visa is tied to the company holding the E2 investor visa and cannot work for the competition. It is important to not abuse this advantage, but it remains a benefit for the employer in a context where employees frequently change jobs.

Renewal of the E2 investor visa

The renewal of the E2 visa is requested at the end of the initial period. In order to be granted, the company must meet the initial conditions for obtaining the visa:

  • Provide more than the minimum required to live for the holder and his family (example on this site of living income by family size and state). Note: For a better understanding by the officer, it is advisable to pay oneself as much as possible in wages rather than dividends. While the LLC does not allow this as standard, it is possible with the S-Corp tax status.
  • Have a significant impact on the local economy, i.e. generate employment. There is a lot of information available on this topic. It is suggested that a minimum of 3 full-time employees is necessary. The salary level may also be taken into consideration, so it is advisable to avoid paying the legal minimum.

As long as the business meets the requirements of profitability and impact on the local economy, and still meets the initial requirements, the E2 visa can be renewed an unlimited number of times. When these criteria are met, the lawyer will proceed with the renewal request based on existing accounting documentation (such as tax returns, profit and loss statements, balance sheets, and employee payroll). A new business plan is not usually required, but one can be helpful if the business is short to meeting certain criteria.

My personal view of the E2 visa

The E2 visa is a subject that I am very familiar with for several reasons.

First and foremost, it was through an E2 visa that I was able to settle in the United States with my family (in my specific case, I received an E1 visa, which is similar to the E2 but for import and export activities).

Additionally, I have been writing business plans for law firms since 2009 and have personally assisted numerous clients from France, Quebec, Switzerland, Belgium, and Mexico in obtaining E2 visas.

Furthermore, as a business broker affiliated with Business Brokers of Florida and certified as a "Certified Business Intermediary" by the IBBA, I help foreign clients purchase Florida businesses that meet strict criteria (such as profitability, lease characteristics, and the presence of proper accounting documentation) so that they can be eligible for E2 visas. The agency that I created, Integrity International Brokers, assists clients throughout the entire process of purchasing a company and obtaining a visa.

In my opinion, the E2 visa is a gateway to the United States. If a project is viable, the applicant is a professional, and they are investing their own funds, obtaining this visa is generally not an issue.

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