VISA PROCESSES

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E-2 Treaty Investors

The U.S. has entered into reciprocal treaties with 82 countries, permitting foreign national businesspeople to obtain E-2 visas to develop and direct businesses. The foreign national must be coming to the U.S. to work as an executive, manager, or “essential” worker.

The foreign national visa applicant must have the same nationality as that of the majority owners of the enterprise or firm. The majority ownership of the business must be held by nationals of the treaty country. Joint ventures (50/50 percent ownership) may qualify foreign nationals having citizenship of the countries of which the venture’s owners have citizenship, even if they are separate treaty countries.

Substantial investment or trade is required. This is defined as the amount necessary to run the business or investing a high percentage of cash. Borrowed funds are permissible in certain circumstances.

Foreign nationals setting up new enterprises may be issued E visas valid for up to five years, but it is common for the consul to issue a one- to two-year visa for a new business. Spouses of E-2 visa holders may obtain authorization to work in the U.S.

  • Requirements
    • Treaty with United States and applicant’s country of citizenship
    • Substantial investment in business
    • Company owned 50%+ by citizens of treaty country
    • Worker must be an executive, manager, or have essential knowledge
    • Often a five-year visa; admission for two years at a time
    • Must prove investment or trade is substantial, and company is not “marginal” solely to earn a living
  • At Risk

    American consuls worldwide have been requiring that a significant portion of the invested funds be put to work before the E-2 visa is issued. More often, consuls do not view funds in a bank account as being “at risk.” This can create difficulties, as one cannot run a new U.S. enterprise until the E-2 visa is issued. We have advised a number of businesspeople on developing their enterprise, and have been successful in advocating to consuls that the enterprise is ready to be launched and the funds are at risk.

  • E Visa Treaty Countries

    A full list of E-2 visa treaty countries can be found here.


Steps for Obtaining an E-2 Visa
  • Step 1

    Lawler & Lawler will provide by email a questionnaire and list of documents needed for the company and visa applicant. We will then evaluate whether investment or trade is “substantial.”

  • Step 2

    Determine whether the business is not a “marginal” enterprise.

  • Step 3

    Documents are gathered to prove company satisfied E visa criteria, and applicant has ability to run or manage the business, or has essential knowledge about the company.

  • Step 4

    Working with the employer and/or visa applicant, we prepare visa application forms and supporting letter, and assemble supporting documents.

  • Step 5

    E visa application is submitted to consul for a visa stamp. Applicants in the U.S. can apply to change to E status. However, upon departure from the U.S., one must obtain an E visa stamp before returning to the U.S.

  • Step 6

    When necessary, we discuss case with the consul.

  • Step 7

    Applicant appears at consul for interview.

  • Step 8

    Applicant comes to the U.S. and presents E visa for admission with I-94 form.


Purchasing an E-2 Business
Purchasing a business as opposed to creating one poses special issues for E-2 visas including:

  • Step 1

    Investors should always do a thorough due diligence analysis and research why a business is being sold. Few sell profitable businesses, but sometimes an owner may wish to retire. Purchasing a money-losing business is not recommended for an E-2 visa as often the visa will be denied.

  • Step 2

    Sometimes potential investors are told that in addition to the tax reported income, the business generates more cash. This may or may not be true. The American Consul deciding the E-2 will look at the tax reported income and not unsubstantiated income claims.

  • Step 3

    The E-2 rules allow an E-2 applicant to enter into a contract to purchase a business and deposit the purchase price with an “escrow” firm (i.e., bank) for release of the funds to the seller when the E-2 visa is granted.

  • Step 4

    A business plan is needed for all new as well as existing businesses being purchased. It must be supported by the tax returns and other evidence.

  • Step 5

    The American Consul will also want evidence the investor has the knowledge and experience to run the enterprise.

  • Step 6

    Evidence of the enterprise’s employees is an important component.

Overall, it is becoming more difficult to find a good business to purchase in the U.S. for under $300,000. Prices vary by regions, but purchasing a good business can be expensive compared to creating a new business