ImLaw Answers Frequently Asked Questions about the E-2 Treaty Investor Visa

The E-2 Treaty Investor Visa is designed for foreign companies or individuals that are investing a substantial amount of capital in a U.S. business. Individual investors or employees of corporate investors must be citizens of a treaty country, a country with which the United States maintains a qualifying international treaty or agreement. The E-2 investor visa offers many benefits but can be complex to navigate.

In today’s post, we will address some commonly asked questions about the E-2 visa and how ImLaw can help.

1. Which countries are currently qualified as a “treaty country”?

The U.S. Department of State keeps an updated list of treaty countries here on its website. 

2. What kind of investors most frequently pursue the E-2 visa?

Both individual investors and employees of corporate investors can apply for the E-2 visa. The E-2 is not restricted to certain industries; almost any type of business can qualify as long as all E-2 requirements are met. We have seen individuals invest in a wide variety of industries including, but not limited to, restaurants, dry cleaning, new energy, technology, travel, beauty products, automotive repair and supplies, real estate development/property management, manufacturing, and franchises. We also frequently work with companies abroad seeking to expand their presence to the U.S. in manufacturing, technology, and talent acquisition/staffing/recruiting.

3. What is a “substantial investment” and how do you prove it? 

ImLaw routinely recommends that an E-2 investor visa application should be presented at a U.S. consulate abroad as opposed to U.S. Citizenship and Immigration Services (USCIS). Corporate investors are required to submit an E-2 company registration application package with the U.S. consulate abroad in advance of any employee making an individual E-2 visa application under the company. Although the law does not specify a minimum investment amount, in practice, we have found U.S. consular officers will not consider anything less than $100,000 - $150,000 (USD) to be “substantial.”    

It is critical to carefully source and document the investment funds from start to finish —from the initial earning or acquisition of the funds to the actual investment of the funds in the U.S. and what they were used to purchase. For example, if the investor received the funds from the sale of a property, they will typically be required to provide copies of the purchase agreement and closing documents for the sale, along with bank account records showing the payment or receipt of the funds.  If the investor received the funds as a gift, we typically work with the individual making the gift (the “gifter”) on a detailed affidavit that confirms the transfer of funds is not a loan but a true gift with no obligation or expectation of repayment.

If the E-2 funds will be (or have been) invested in real estate, security deposit and/or prepayment on an office lease, inventory, equipment, supplies, and/or labor (payroll expenses for hired U.S. employees) for the U.S. business, evidence such as purchase agreements, closing documents, lease agreements, receipts, contracts, invoices, bank statements, credit card statements, payroll records and employer quarterly tax reports (i.e., 941 Forms) should be collected. Regarding the investment of funds in the U.S., investors must prove the “who, what, where, when, why, and how. Strategizing with experienced business immigration counsel like the attorneys at ImLaw in advance of transferring and investing any monies will ensure all steps in the process are documented timely and correctly.

4. What other E-2 requirements are challenging? 

There are additional E-2 requirements that can be challenging for investors. The experienced ImLaw team works closely with clients on strategies to meet each element: 

• Proving the funds are truly being put ‘at risk’ in an active, substantial investment. Funds sitting passively in a bank account do not qualify.

• Reviewing and providing feedback on the investor’s five-year business plan to show the new business will be viable and meet the E-2 visa requirements.

• The “marginality” requirement—proving to the consular officer that the investment will benefit the U.S. economy and not merely serve as a subsistence income for the investor and accompanying family members. Hiring U.S. workers is one of the best ways to overcome marginality. 

5. What are some of the benefits of the E-2 Visa?

The E-2 classification is beneficial for several reasons. There is no cap or limit on the number of E-2 visas that can be issued. In addition, there is no lottery like the H-1B - you may file for an E-2 visa at any time of the year. The E-2 allows individuals to direct and develop their own business, which is incredibly rewarding, and it also is a convenient and useful vehicle for companies to send managerial, supervisory, and essential workers to the U.S.  

For corporate investors, employees must possess the same nationality as the company itself, but they do not have to be existing employees. In other words, a qualifying company abroad that obtains an approved E-2 registration can apply to transfer individuals possessing the same nationality to the U.S. without having employed them first (unlike the L-1 visa category which requires employment abroad for one year on a full-time basis before being transferred to the U.S.). Finally, spouses of E-2 visa holders enjoy the benefit of being authorized to work in the U.S., which is attractive for families.

6. How long is the E-2 visa valid?

E-2 visas are issued by U.S. consulates for a maximum of five years at a time. They are renewable in five-year increments. However, when the E-2 investor or employee arrives at a U.S. port of entry and presents the E-2 visa to a U.S. Customs and Border Protection (CBP) officer, E-2s are only admitted for two years at a time. On each subsequent future arrival to the U.S., however, the E-2 can be admitted for another two-year period all the way up until 60 days from the E-2 visa expiration date.  

An individual E-2 visa and E-2 company registration can be renewed in five-year increments theoretically indefinitely, as long as the E-2 enterprise in the U.S. remains operational and viable, and the E-2 visa holders can demonstrate they continue to meet the E-2 classification requirements.  

These FAQs provide a high-level overview of the E-2 treaty investor visa process. We invite you to contact our team to schedule a consultation to discuss your particular case. We look forward to working with you!

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