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E-2 Treaty Investor Visa Attorney
Entrepreneurs who want a new life and the freedom to build the business of their dreams in the United States have exactly that opportunity through an E-2 investor visa. The good news is that obtaining the visa itself is relatively – certainly in comparison with other work visas – simple. The unwelcome news is that qualifying is much harder.
The first step is right there in the name: E-2 visas are reserved, solely, for entrepreneurs from countries that have a Trade and Commerce Treaty with the U.S..
That’s the easiest and clearest step, after that, if your country meets that criteria, the qualifications get incrementally more stringent.
Many of them are not clear, many of them are contingent on other requirements, many are ambiguous at best.
Navigating this requires a law firm with deep knowledge, and years of experience. It requires a firm that is on the forefront of the law changes. It requires Patricia Castillo Flanagan and Work Visa Lawyers, P.A.
The Requirements in a nutshell
The E-2 visa is designed to enable foreign investors, business owners, entrepreneurs, and others to enter the United States to invest and/or develop businesses. The major requirements: the investment must be substantial and must made with ’clean’ personal funds or a loan secured by property other than the business in the U.S.
So then, the three major requirements for a E-2 read like this:
You are a national of a country that maintains a treaty of commerce and navigation with the United States (there are just over 30).
You have invested or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
You are seeking to come to the U.S. solely to develop and direct the investment enterprise.
You must have at least 50% ownership of the enterprise or possession of operational control through a managerial position or some other corporate device.
It’s clear that the qualifications to obtain a E-2 Visa are full of ambiguities. They look vague; they are remarkably subjective. If many government forms are the equivalent of a ‘Fill in the Blanks’ test, the E-2 application is an essay exam.
Breaking down the E-2 Pieces
We cover work visa cases across the spectrum of immigration law.
What does the government want? What is it looking for?
Here’s how the USCIS defines ‘substantial amount of capital’:
Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one.
Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise.
Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
The amount, then, must be enough to successfully develop and run the business. What does that really mean? Every business owner across every industry knows that this is incredibly difficult to calculate. Successful companies have started in college dorm rooms and garages. Startups funded with millions have gone bankrupt seemingly overnight.
Here's how the USCIS defines investment and commercial enterprise:
What does the government want? What is it looking for?
A real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.
The capital must be subject to partial or total loss if the investment fails.
The investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.
The first requirement is, comparatively, easy to compile with good business records and the ability to get the proper paperwork from your home country.
The ‘non-criminal activity provision’ can be more problematic as, in many cases, it is a matter of proving a negative, e.g., ‘no, those funds are clean.’
When you file for an E-2 Visa, you are in effect presenting your case to the U.S. government on why you should be allowed to run a business in the United States. You’re trying to prove to a government that is skeptical that you are and will be successful in your business endeavors.
That’s why you should not attempt to do this alone. For every question you think you might be answering, for every doubt you might think you are erasing, you are probably missing two others.
Patricia Castillo Flanagan and Work Visa Lawyers, P.A. are here for you. Please contact us as early in the process as possible. We have the knowledge and experience to quickly and efficiently file the application and see it through to fruition.
Other E-2 Visa considerations
For many of our clients, there’s a lot more at stake with their E-2 application than ‘simply’ operating a company in the U.S.. It’s also an opportunity to have your dependents and relatives join you. There’s the opportunity to bring key employees and skilled workers with you.
It should be noted that dependents that join you under your E-2 Visa are eligible to attend schools – including college – without applying for student visas.
Consequently, there is usually a lot more riding on a successful E-2 application than the business – there is the future of family and cherished employees.
Once you are approved for the E-2 and are here in the U.S. and operating your business, there is the matter of keeping your E-2 status. The E-2 visa can be extended; it is up to you to file for the extension in a timely manner and to timely discuss with your immigration attorney any material changes related to your business.
Contact Us
Work Visa Lawyers, P.A. understands the ins and outs of the E-2 Visa process as it pertains to different business and investors from around the world. We understand what the U.S. government is looking for. We understand that that can change, if and when it does we will be on the forefront of adapting to those changes.