E2 Visa – Investor Visa Guide

The E2 Visa is a great option for investors and entrepreneurs. With an E2 visa, you can live in the United States, start a US business, and work for your business. 

In this guide I will discuss what you need to know about the E2 visa.

If you have any questions about the E2 visa, feel free to contact us directly at visa@libertyimmiconsultants.com. We’re very responsive via email and would be happy to answer your questions.

Overview:

1. What is the E2 Visa?
2. What are the Benefits of an E2 Visa?
3. What are the E2 Visa Requirements?
4. What is the Process of Getting an E2 Visa?
5. What are the Differences Between Getting an E2 Visa and Doing a Change of Status to E2 Status?
6. How Long Does it Take to Get an E2 Visa?
7. How Long Can I be in the US on an E2 Visa?
8. If I Get an E2 Visa, Do My Family Members Get Immigration Benefits?
9. Can I Get an E2 Visa as an Employee of an E2 Company?
10. How Can I Go From an E2 Visa to a Green Card
11. Conclusion

1. What is the E2 Visa?

The E2 visa is a non-immigrant visa for investors, entrepreneurs, and individuals aimed at running a business in the United States. With an E2 visa, you can start a new US business or invest in an existing one and actively work in it.

To qualify, you must invest a substantial amount of capital into a US business and take on its development and direction. This visa is available to nationals of specific countries that have an E2 treaty with the US (we will cover the eligible countries below).

The exciting part is, unlike other visas, there is no limit to how many times the E2 visa can be renewed! As long as your business continues to operate and meet the requirements, you can keep renewing your visa and enjoy living and working in the US.

Summary: 

• The E2 visa is designed for investors and entrepreneurs.
• Qualify by investing substantially in a US company.
• Enjoy the ability to renew the visa repeatedly, provided your business stays compliant with E2 requirements.

2. What are the Benefits of an E2 Visa?

• Investors from Bangladesh can establish, advance, and operate a business in the United States.
• There is no minimum investment amount required by law, but the investment must be sufficient to develop a successful, non-marginal business.
• The spouse of an E-2 investor is eligible for an E-2 dependent visa, which allows them to apply for work authorization.
• Children under 21 of the E-2 investor are eligible for an E-2 dependent visa and can attend the school of their choice. In many states, children may qualify for in-state tuition at public universities until age 21.
• The E-2 visa holder can live outside the United States indefinitely and re-enter the country as long as their visa remains valid.
• The E-2 visa is typically granted for 1-5 years initially, with extensions available for an additional 2-5 years. There is no legal limit on the number of extensions, allowing indefinite stay in the U.S. as long as the business is profitable and non-marginal.
• Accompanying spouse and children under 21 may qualify for a Green Card if the principal applicant changes their status from E-2 to H1B Entrepreneur/Self-Employed, or through the spouse if they change status via a qualifying employment category and apply for a Green Card through the sponsoring employer.
• If the principal applicant is unmarried, they may apply for a Green Card through marriage to a U.S. citizen or Permanent Resident.

3. What are the E2 Visa Requirements?

Here are the main criteria you need to meet:

1. The investor (individual, partnership, or corporate entity) must have citizenship in a treaty country. Bangladeshi nationals qualify due to the U.S.-Bangladesh treaty/business relationship.
2. If the investor is a business, at least 50% ownership must be held by individuals with the treaty country’s nationality.
3. The investment must be substantial, with funds or assets committed and irrevocable. A minimum of $100,000 is recommended to ensure the successful operation of the enterprise.
4. The investment must be in a real, operating enterprise (active commercial or entrepreneurial activity). Paper organizations, speculative, or idle investments do not qualify. Uncommitted bank funds or similar securities are not considered investments.
5. The enterprise must generate significantly more income than necessary to support the investor and their family, or it must have a significant economic impact in the United States.
6. The investor must control the funds, which must be at commercial risk. Loans secured by the investment enterprise’s assets are not permitted.
7. The investor must come to the United States to develop and direct the enterprise. If not the principal investor, they must be an essential employee in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers are not eligible.

i. You must be a national of a country with an E2 treaty with the United States.

To get an E2 visa, you must be a national of a country that has a qualifying treaty with the United States.

To explain this concept, let’s break this requirement into 2 sub-categories:

• Nationality

• Treaty with the United States

Nationality

You must have the nationality of a country with a qualifying treaty with the United States.

• You typically have the nationality of the country of your citizenship.

• If your nationality is unclear, the nationality laws of your home country and the language of your home country’s treaty with the US will determine whether you qualify as a “national.”

There are two ways to qualify for an E2 visa:

• You can invest in a US business as an individual

• Or your foreign business can invest in a US business

Investment as an Individual

• If you are investing in a US business as an individual, then you will be considered the E2 principal investor.

• Your country of citizenship will determine whether you satisfy the nationality requirement.

• If you are a dual national (you hold nationality of two countries) you may still qualify for an E2 visa. You will have to apply for the E2 visa based on your nationality of the treaty country.

Investment by Foreign Business

• If your foreign business is investing in the US business, the foreign business will be considered the E2 principal investor.

• The nationality of the business is determined based on the individual owners of the business.

• To qualify for E2, the business must be at least 50% owned by nationals of the treaty country.

• If less than 50% of the business is owned by nationals of the treaty country, it may still qualify for E2 if the business is restructured so that treaty nationals own at least 50% of the business.

Qualifying Treaty with the United States

The second part of this requirement is that there must be an E2 treaty between the US and the E2 investor’s country of nationality.

Here’s a complete list of all the countries that have an E2 treaty with the United States:

Here are some major countries that do not have an E2 Treaty with the US:

Brazil, China, India, Russia

ii. You must have the intent to depart the US once your E2 status ends.

To get an E2 visa, you must have the intent to depart the United States once your E2 status ends.

• For most non-immigrant visa categories, you are required to prove that you have non-immigrant intent.

• To prove non-immigrant intent you are usually required to show strong ties to your home country, such as having a foreign residence, a career, etc.

• This is not required for an E2 visa.

• For the E2 visa, you can satisfy the “intent to depart” requirement by submitting a signed statement that you intend to depart the United States once your E2 status ends.

• If you need any help with this, feel free to email me directly at Michael@AshooriLaw.com 

iii. You must make a substantial investment in a US company.

To qualify for an E2 visa, you must make a substantial investment in a US company.

• The regulations do not specify a minimum investment amount that qualifies as substantial.

• The Foreign Affairs Manual specifically states: “No set dollar figure constitutes a minimum amount of investment to be considered ‘substantial’ for E-2 visa purposes.” [9 FAM 402.9-6(D)]

• Instead, a proportionality test is used to determine whether an investment is substantial or not.

Proportionality Test

• The proportionality test compares 2 numbers: the amount of money you invest in your business and the total value of the business.

• The value of an existing business is typically its purchase price.

• The value of a start-up is the total cost to bring the business to the point of being operational.

• To determine if your investment is substantial or not, the immigration official working on your case will calculate the proportion between how much you actually invested in the business to the total value of the business.

• For businesses with a lower value, your investment should be a very high percentage of the total value of the business to be considered substantial.

• For businesses with a very high value, your investment may be a lower percentage of the total value of the business, to be considered substantial.

• Unfortunately, there are no exact percentages used to determine what is substantial.

• If the total value of your business is $100,000 or less, your actual investment should be 100% of the total value of the business, to be considered substantial.

• On the opposite end of the spectrum, if the total value of your business is very high (for example $10,000,000), an investment of $5,000,000 would very likely be considered substantial even though proportionately it is only 50% of the total value of the business.

• If you have any questions on your particular business, and whether your investment will be considered substantial, please email me directly at Michael@AshooriLaw.com. I’d be happy to help analyze your investment.

Rule of Thumb

• As a general rule of thumb, at my firm, I like to see that at least $100,000 invested in the business is put at risk.

• However, investments for $50,000 and even lower have qualified for E2.

• The higher your investment is, the better chance that your investment will be considered substantial, and the stronger your case will be.

iv. Your E2 business must be an active, for-profit business.

• The business invested in for an E2 visa must be an active, for-profit, business. The business must conduct some sort of entrepreneurial activity.

• Examples of businesses that would meet this requirement include companies that sell some kind of a product or service for profit.

• Passive investments will not qualify. This means that an investment in a piece of residential real estate, or an investment in the stock market will not work.

v. The business that you invest in cannot be considered a marginal enterprise.

To qualify for an E2 visa, the E2 business invested in cannot be a marginal enterprise.

• A marginal enterprise is a business that does not have the present capacity or the future capacity to generate enough income to provide more than an minimal living for the E2 investor and their family. [CFR Section 214.2(e)]

• Even if the business does not have the capacity to generate enough income, if it has a present or future capacity to make a “significant economic contribution” it is not a marginal enterprise. [CFR Section 214.2(e)]

There are 2 ways to prove that the E2 business is not a marginal enterprise:

• Show that has the present or future capacity to generate more than enough income to provide a minimal living to you and your family.

• Show that the business has the present or future capacity to make a “significant economic contribution.” You can prove this by showing that the business either currently employs or will employ multiple workers.

vi. You must be entering the United States to direct and develop your E2 business.

As an E2 investor, you are required to seek entry into the United States for the sole purpose of directing and developing the E2 business.

• You can satisfy this requirement by showing that as the E2 investor, you own at least 50% of the E2 business.

• If you do not own at least 50% of the E2 business, you can still satisfy the requirement by showing that you have operational control of the business.

• You can show operational control by having a managerial position within the business. Other similar ways may also work.

• You cannot be a passive investor and qualify for an E2 visa.

• If a foreign business entity is an E2 investor, it must show that it is directing and developing the E2 business.

• E2 employees do not have to show that they are seeking entry into the United States to direct and develop the E2 business.

• If two parties own equal shares in the business entity (50/50), they can still meet the “direct and develop” requirement. Both parties must have full management rights and responsibilities.

vii. The source of your investment funds must be lawful.

The funds that you use to invest in your E2 business must have been obtained lawfully.

• Examples of lawful sources of funds include earnings from lawful employment, income from the sale of property, gifts, an inheritance, etc.

• You can also use the proceeds from a loan as your investment funds. The loan must be either unsecured or secured by your personal assets.

• Loans secured by the assets of the E2 business will not qualify.

• You must be able to sufficiently document how the funds were earned.

viii. Your investment must be irrevocably committed to the E2 business and must be at risk.

To get an E2 visa, you must make an investment that is at risk and your investment funds must be irrevocably committed to the E2 business.

• Basically, what this means is that your investment funds must actually be spent on the business and cannot just be sitting in your operating account.

At Risk

• To satisfy the at-risk requirement, your E2 investment funds must be subject to either partial or total loss.

• This means that there can be no guarantee that you will get any part of their funds back.

• To determine whether your investment is truly at risk, you can ask yourself the following question: If the E2 business fails, how much money would be lost?

Investment is Irrevocably Committed

• Your investment funds must be already invested in the E2 business at the time of filing or they must be in the process of being invested in the E2 business at the time of filing.

• You must also be close to starting actual business activities.

• This is to ensure that you, as the E2 investor, are committed to the success of the E2 business.

• Your intent to invest, without a present commitment is insufficient. Also, putting the investment funds in a bank account, without an actual commitment, is not enough to qualify for an E2 visa.

• That said, a reasonable amount of funds kept in a business operating account can qualify toward your investment capital.

• To meet the irrevocability standard, you may be able to place the investment funds in an escrow account. The release of the funds can be solely conditional on the approval of your E2 visa or E2 change of status.

5. What are the Differences Between Doing a Change of Status to E2 and Getting an E2 Visa?

There are many factors that you should consider before you decide whether to change status or go through consular processing. Before you decide which option to choose, you should discuss it with an immigration attorney.

Here are a few factors to consider…

Are you lawfully present in the US?

• Filing for a Change of Status is only available to nonimmigrants who are lawfully present in the US

• If you are abroad you will not qualify for a Change of Status.

How quickly do you need the E2 visa?

• One of the reasons some people choose to do a Change of Status is because of the speed of processing.

• USCIS offers Premium Processing. This means that a Change of Status can be processed in as little as 15 days. Consular Processing can take much longer.

Will you need to travel outside of the US?

• Keep in mind that if you change your status to E2 status, once you leave the United States, you will no longer have status.

• To re-enter the US, you will have to get an E2 visa at a US Consulate abroad.

• US Consulates do not base their decision on a prior approved E2 Change of Status from USCIS. So you will be applying all over again for an E-2 visa at the consulate. You will have to re-submit the documents proving that you meet the E2 requirements.

How much are you investing?

• Some consular posts are more strict than others and will want to see a higher investment amount, to qualify as a ‘substantial’ investment.

• If your consular post is strict, you may want to change your status. This is so that you can grow your E2 business. Then, at that time, you can apply for an E2 visa abroad with more funds invested in the business.

• Keep in mind that this strategy can also work against you if your E2 business does not perform as well as you expect. In this situation, the consular post would have two years of actual business activity to judge your business.

6. How Long Does it Take to Get an E2 Visa?

Three main stages of the E2 visa process determine how long it will take:

• Document Gathering
• Legal Preparation
• Consular Processing or Change of Status

Document Gathering

• Once you hire an immigration attorney, they will review your case. They will then provide you with a list of all the documents they need from you to file your E2 visa application.

• The gathering of documents takes clients around 1 month. This can be much faster or slower depending on you.

Legal Preparation

• Once you send the documents to your immigration attorney, they will take about two weeks to prepare and complete everything. They will then file your completed E2 petition.

Consular Processing/Change of Status

• Your application will then be sent to the US consulate of your home country (consular processing). Or, if you are in the US you can change status to E2 status (change of status) by sending your application to USCIS.

• Consular processing takes around 2-3 months.

• A change of status through USCIS takes 2 to 3 months. You can choose to speed up the process by paying an extra fee of $2,500.00 for premium processing. This will reduce the total processing time to 15 calendar days. A request for additional evidence (RFE) can slow down this process.

• Keep in mind: If you select Premium Processing, USCIS only has to issue a response within 15 days. USCIS can send a request for more evidence if they believe your application is missing something or if they are confused about something.

• Once you respond to a request for evidence, USCIS is no longer required to respond within 15 days. USCIS can take longer to respond.

7. How Long Can I be in the US on an E2 Visa?

• The length of time your E2 visa is valid depends on the country issuing the visa. The period of visa validity generally ranges from 1 year to 5 years.

• If your E2 visa is valid for 5 years, this does not mean that you can stay in the US for 5 years at a time.

• Your status (not your visa) determines how long you can stay in the US at any one time.

• With an E2 visa, you are granted 2 years of status each time you enter the US.

• With a valid E2 visa, you can exit and re-enter the US to get an additional 2 years of status.

• There is no limit to the amount of times you can renew your E2 visa.

• You can continue to renew your E2 visa as long as your company meets all the E2 visa requirements.

8. If I Get an E2 Visa, Do My Family Members Get Immigration Benefits?

• Yes, as the principal E2 applicant, you can bring your spouse and unmarried children under 21 years old.

• Your spouse and unmarried children will also have E2 status.

• Your spouse may apply for a work permit to work in any lawful capacity in the United States.

• Your children may attend school in the US but they may not work.

9. Can I Get an E2 Visa as an Employee of the E2 Business?

Yes, a noncitizen may get an E2 visa through employment with an E2 business enterprise.

There are generally 3 classes of employees that can get an E2 visa:

1. Executive Employees
2. Supervisory Employees
3. Employees with Special Skills that are essential to the E2 Enterprise

10. How to Go From an E2 Visa to a Green Card

Yes, there are a few things to go over:

• The E2 visa is a non-immigrant visa category. This means that the E2 visa is temporary and does not directly lead to a green card.

• So, to get a green card you will have to apply for an immigrant visa or adjust status to an immigrant status.

• Remember, the E2 visa requires you to have the intent to depart the United States once your E2 status is terminated.

• Still, you cannot be denied E2 status just because you get approved for an immigrant visa petition.

• This means that you can apply for an immigrant visa or adjust your status in the US while you have an E-2 visa.

• Now that you know the basic issues, let’s discuss the different green card options.

Green Card Options:

EB-5 Visa

• The EB-5 visa is an investment-based immigrant visa. This means that it leads to a green card.

• The EB-5 visa requires that you invest a minimum of $1.8 million in a US business. Or, you can invest $900,000 if the investment is located in a targeted employment area. Your investment must also lead to the creation of 10 full-time jobs for US workers.

• The benefit of transferring from an E2 visa to an EB-5 visa is that in some cases, your investment to get the E2 visa will count for your EB-5 visa.

• Also, if you’ve created jobs for your E2 business, these jobs may also count for your EB-5 visa.

• If you already invested a lot of capital in the E2 business and created enough jobs, you may be able to get an EB-5 visa with little effort.

Family Based

• Your close family members who are US citizens or lawful permanent residents may be able to sponsor you for a green card. 

Spousal

• You may qualify for a green card if you enter into a legitimate marriage with a US citizen.

Employment-Based

• You may qualify for a green card if a US company offers you a job and sponsors your green card.

• The US employer would have to get a Labor Certification through the US Department of Labor.

EB-1 A

• The EB-1 A visa is for people with “extraordinary ability.”

• The benefit of this visa is that you can self-petition. This means that you can apply for your green card without a company sponsoring you.

EB-2 National Interest Waiver 

• The EB-2 visa is for people with “exceptional ability” or “advanced degree professionals.”

• The unique aspect of an EB-2 visa is that, along with an EB-2 visa, you can apply for a “National Interest Waiver.”

• With a National Interest Waiver, you can apply for an EB-2 visa without a US company sponsor.

• To get a National Interest Waiver, you must show that it is in the national interest of the United States, to allow you entry without a US company sponsor.

11. Conclusion

Now that you’ve read this guide, you should have a good understanding of the most important aspects of the E2 visa.

We have covered: What the E2 visa is, the requirements to get an E2 visa, the benefits of an E2 visa, and much more. I know that this is a lot of information to understand. If you are confused about anything, don’t worry, I’m here for you.

If you have questions, we welcome you to contact us directly at visa@libertyimmiconsultants.com. I’m very responsive via email and would be happy to help you.

Resources:

• U.S. Department of State – Treaty Countries

• 9 FAM 402.9

• 22 CFR Section 41.51

• USCIS – E2 Treaty Investors

• E-1 and E2 Nonimmigrants – Updated by Henry J. Chang.