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• Investment: The applicant must invest a substantial amount of capital in a U.S. business. The exact amount depends upon the type of business and location.
• Position: The treaty investor E2 visa is not available to just any employee of a foreign business. The applicant must direct and control the business or hold certain management positions.

Generally, an E2 visa applicant is considered to have made an investment if the applicant placed money or other assets with an organization doing business in the U.S. The investment must be “at-risk” meaning that it may be subject to loss, and the investment must be made with the purpose of generating a profit and jobs in the U.S.

AMOUNT OF INVESTMENT

Investors must make a “substantial” investment to obtain an E2 visa. The investment may be either an investment in creating an enterprise or infusing funds into an existing enterprise. Immigration officials will look at whether the amount of funds are sufficient to ensure that the applicant has a stake in seeing the success of the investment and that the investor will take a role in directing and developing the enterprise.

DO I MERELY NEED TO PROVIDE USCIS WITH A BUSINESS PLAN AND A FUTURE INTENT TO INVEST FUNDS INTO THE U.S.?

No. Although a business plan is an important part of an E2 visa petition, for a new company, it is insufficient to indicate a future intent to invest a particular sum of money. As provided by applicable regulatory language, uncommitted funds are not considered sufficient even if proof of these funds are shown to exist in a bank account. In order to satisfy the E2 visa standards, the funds have to be irrevocably committed to the new enterprise.

HOW CAN I POSSIBLY IRREVOCABLY INVEST A SUBSTANTIAL SUM OF MONEY INTO AN ENTERPRISE IN THE U.S. IF I AM NOT SURE TO BE GRANTED THE VISA THAT ALLOWS ME TO ENTER AND OPERATE THE BUSINESS?

The regulations do make it clear that placing funds into an escrow account (a common type of third party holding account in the U.S.), will be considered satisfactory. So the way this could help is that a person could place their investment amount into an escrow account which irrevocably commits funds to a particular purpose, e.g. the purchase of office space or a store front, as long as a specific contingency is satisfied, such as being granted the E2 visa. This provides a legal mechanism by which the investor can show that funds have been irrevocably committed, while it protects the investor’s money in case the E2 visa is not granted, as the funds are then returned due to the failure to satisfy the contingency.

DO I HAVE TO INVEST ONE MILLION DOLLARS INTO A COMMERCIAL ENTERPRISE TO GET THE E2 VISA?

No. Many people confuse the E2 visa process with the EB-5 green card investment category. The EB-5 green card category is an immigrant visa petition which, if approved, provides the investor with Legal Permanent Residence.

For the E2 visa a substantial investment amount is required. The regulatory language does not provide a specific dollar amount, as opposed to the EB-5 category, however they do provide a test that is to be used. This test is termed the relative/proportionality test and considers the following elements:

(i) Whether the capital investment is substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;

(ii) Whether the capital investment is sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and

(iii) Whether the capital investment is of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital.

WHAT IF I INHERIT A BUSINESS THAT IS WORTH A SUBSTANTIAL SUM OF MONEY?

Unfortunately, inheriting a business in the U.S. does not qualify as an investment for E2 visa purposes, however, inherited funds can be used to in turn invest in establishing a U.S. commercial enterprise for E2 visa purposes.

DOES THE BUSINESS HAVE TO SHOW THAT IT WILL BE MAKING A CERTAIN SUM OF MONEY IN ORDER TO BE APPROVED?

Per the regulatory language, a commercial enterprise is not allowed to be marginal in nature. What this means is that a qualifying E2 visa commercial enterprise will have the capacity to generate more income for the investor and family then merely an amount required to live. Accordingly, whether the investment will create future job opportunities, and whether the enterprise will generate sums of money far above that which could be considered a living wage are important factors.

CAN I INVEST CAPITAL AND APPOINT A DIFFERENT PERSON TO ENTER THE U.S. AND OPERATE THE BUSINESS?

Yes, assuming that the person being appointed is of the same nationality as the treaty employer and is either (1) an Executive or Supervisor or (2) an Essential Employee.

WHO IS CONSIDERED TO BE AN EXECUTIVE OR SUPERVISOR?

Pertinent regulatory language provides that the position needs to be “principally and primarily” as opposed to merely “incidentally or collaterally” executive or supervisory in nature. The following considerations must be taken into account when determining whether the position satisfies the requirements:

• Does the position provide the person authority to determine policy and direction?
• Does the position provide supervision for a significant portion of the operation?
• Does the position provide supervision over low-level employees or is it of a higher supervisory nature?
• Does the person possess the proper executive/supervisory skills and experience?
• What is the salary of the position?
• What is the relationship of the position to the greater organizational structure?
• What percentage of the persons duties are routine staff work?

WHO QUALIFIES AS AN ESSENTIAL EMPLOYEE?

To be considered an essential employee the person must show that they have a particular proven degree of expertise in the particular job duties required by the enterprise and that those duties are very specific in nature, thereby supporting the need for the particular persons abilities.