E-2 Treaty Investor Visa
E-2 Treaty Investor Visa
The E-2 Treaty Investor Visa may be the best and most underutilized nonimmigrant Visa in existence. The E-2 Treaty Investor Visa is a nonimmigrant Visa, which means that it is temporary. However, for those individuals who do not qualify for a Green Card based on employment the E-2 Treaty Investor Visa is almost as good as Lawful Permanent Residence status.
The E-2 Treaty Investor Visa allows the holder to obtain lawful immigration status through self-employment, and further allows for the possibility of unlimited extensions of that lawful immigration status. This means that it is possible and in many cases even likely that the E-2 Treaty Investor Visa holder can maintain lawful immigration status for many years.
If you even think that the E-2 Treaty Investor Visa may be a good fit for you, please contact me so we can discuss the options that are available to you.
Advantages of the E-2 Treaty Investor Visa:
1. The E-2 Treaty Investor Visa allows for self-employment. This is huge for foreign nationals who would like to come to the United States to start or purchase a business.
2. The E-2 Treaty Investor Visa allows the foreign national the freedom of traveling in and out of the United States on the Visa as long as the Visa and the duration of stay on the I-94 card have not expired. 3. The E-2 Treaty Investor Visa can be issued for up to five (5) years at a time and also allows for unlimited extensions for up to two (2) years at a time.
4. Unlike many other types of nonimmigrant Visas, there are no numerical limits per year on the issuance of the E-2 Treaty Investor Visa. This means that once the Petition is approved, there is no wait time to enter the United States. The Visas are issued immediately.
5. Unlike other nonimmigrant Visas, the E-2 Treaty Investor Visa does not require a specific dollar amount minimum investment. So it is not necessary to invest one million U.S. dollars ($1,000,000.00) into the business. How much needs to be invested depends upon the type of business invested in and is adjudicated on a case by case basis.
6. The E-2 Treaty Investor Visa allows spouses and children (unmarried and under of twenty one (21) years of age) to accompany the Visa holder into the United States. Moreover, the accompanying spouse, (but not children) can lawfully work in the United States.
Requirements of the E-2 Treaty Investor Visa:
1. Petitioner must be a citizen of an investor treaty country.
2. Petitioner must work for a company owned by the Petitioner or a national of the Petitioner’s home country owns 50% of the business.
3. Petitioner must be the owner or a key employee of the United States business. An owner is defined as owning at least 50% of the company, possessing key operational control or be in a position to control the enterprise by other means.
4. The United States business must be engaged in trade or rendering of services for profit. The test is whether the United States business requires supervisory or executive day to day oversight. Moreover, the profit must be more than ‘marginal’. The test for greater than marginal profits is as follows:
(a) Petitioner’s income from the investment must be examined. The income should be greater than that which is necessary to support Petitioner and his/her family.
(b) If the income is not sufficiently large, other factors to consider include the economic impact of the business. This includes the businesses’ capacity to make a significant economic contribution. Essentially, this requires the submission of a formal written business plan.
5. Petitioner/Company must have made a substantial investment in the United States business. A substantial investment is defined as putting capital/assets at risk with the goal of generating profits. Whether the investment is substantial depends upon the type of business. The lower the cost of the business the higher the percentage of funds needed to be invested to qualify. Factors to consider include:
(a) What it would take to buy or create the same sort of business,
(b) Whether the investment is enough to ensure commitment to successful operation, and
(c) Whether the investment is enough to ensure probability to successfully develop and direct the enterprise.
6. Petitioner must intend to leave the United States when the business is completed. Evidence of the intent to leave is not required but would be very helpful. This could include owning property such as a house in Petitioner’s home country or having family members who live outside of the United States.
Evidence Needed to Obtain the E-2 Treaty Investor Visa:
The following is for informative purposes only and is not intended to be an exhaustive list of the evidence needed to acquire the E-2 Treaty Investor Visa:
1. Evidence of possession and control of investment funds, such as financial records, bank records, financial statements, loans, savings and promissory notes.
2. Evidence of conveyance of money to the United States. This evidence could include bank drafts, money transfers and receipts.
3. Evidence of the existence the United States business. This could include secretary of state filings, articles of incorporation, partnership agreements, tax returns (if any), organization and staffing charts, shares, titles, contracts, receipts licenses, leases, financial records, business valuation documents, accountant’s letters, marketing and promotional materials, annual reports and so forth and so on.
4. Evidence of Petitioner’s nationality, which could include such documents as a certified, long form birth certificate, passports for individuals and articles of incorporation of parent company, stock exchange listings if Petitioner is a business.
5. Evidence of the substantial investment in the United States business. This could include any and all financial records, tax returns, capital improvement receipts, purchase and sale receipts.
6. Evidence that the United States business produces more than a marginal profit. These documents could include payroll records, payroll tax forms, personal tax returns or other evidence of personal income and assets.
Other Requirements for the E-2 Treaty Investor Visa
1. Petitioner must have never entered the United States unlawfully.
2. Petitioner must be otherwise admissible to the United States. Whether or not a person is admissible is a whole separate topic, but generally speaking as long as the individual does not have a communicable disease or a criminal record involving crimes of moral turpitude, the individual will be generally admissible into the United States.
Extensions of the E-2 Treaty Investor Visa and/or Status
The E-2 Treaty Investor Visa can be extended for up to five (5) years at a time. The lawful immigration status of the E-2 Treaty Investor Visa can be extended for up to two (2) years at a time.
If Petitioner has a valid, unexpired E-2 Treaty Investor Visa, but the I-94 Card’s Duration of Stay is about to expire, it is a good strategy to leave and return to the United States instead of trying to extend the lawful status. When Petitioner renters the United States on a valid E-2 Treaty Investor Visa, a new I-94 card with a new Duration of Status is issued for a one (1) to two (2) year period. By leaving and reentering Petitioner does not need to file and extension and there is no re-evaluation of qualifications.
If Petitioner’s E-2 Treaty Investor Visa is about to expire but the I-94 Card’s Duration of Stay is longer than the actual Visa, it is a good idea to simply stay in the United States. Petitioner will maintain lawful status until the expiration date on the I-94 Card. However, once Petitioner leaves the United States he/she will need to file a new E-2 application and engage in Consular Processing.
If both the Visa and the Duration of Stay are about to expire and Petitioner is inside the United States, he/she has the option of filing for an extension of status inside the United States but will still have to leave and file for the Visa outside of the United States and still go through the Consular processing.
Green Card Possibilities from the E-2 Treaty Investor Visa
In order to apply for a Green Card, Petitioner must convince the United States government that Petitioner did not intend to apply for a Green Card when he/she applied originally for the E-2 Treaty Investor Visa or at the time any extensions were applied for. This is the problem of preconceived intent. Moreover if the Green Card application is denied Petitioner’s lawful E-2 status could be revoked, and could cause Petitioner to fall out of lawful immigration status.