E-2 Visa – The Investor Visa

The E-2 Nonimmigrant Visa is available to any citizen of a country that is a signatory of a Treaty of Commerce and Navigation or related treaty meant to encourage investment between the US and your country. The E-1 is based on trade, while an E-2 is based on substantial investment in the United States.

The law provides original jurisdiction for E visas with the State Dept. through our Embassies and Consulates, so most often it is recommended that an application originate with the US Embassy or Consulate with jurisdiction over your foreign residence. Each Embassy/Consulate has different procedures, but it usually does not take more than 30 days to process such a request.

The process involves the completion of certain application forms, and gathering and presenting all the necessary documentation to establish that you have invested, or are in the process of investing, a “substantial” amount to conduct business in the United States. It is assumed there is a valid business established in the U.S. to manage the investment and serve as a base for your operations during the approved visa period even if newly established solely for this purpose. We must be prepared to document its establishment, ownership (ultimately must be at least 50% owned by nationals of your country who are NOT U.S. permanent resident aliens or dual citizens) of the entity, and the amount of investment involved. “Investment” includes all monies or obligations that are “at risk” of loss, so this can include cash, leases with personal guarantees, notes, etc. There is no threshold amount, rather “substantial” is an amount necessary to project success of the operations/business venture. It is almost as if we present a business plan and convince the Officer that your investment and investment plan will be successful. As a general rule the purchase of residential properties for personal use or a few for renting is considered a passive investment, but if you establish a business with the purpose of purchasing, renovating, leasing, and reselling multiples properties then this can be an option.

The individual asking for the E visa is often the actual investor and owner, but it can also be a national of the same treaty country that the investing company or individual wishes to hire to serve as a manager or executive in the US operations, or a person entering to use essential skills at the US operations. An actual majority investor or owner can apply to monitor and manage his/her investment, but for everyone else the person must be entering to assume a defined managerial or executive role, or one requiring essential skills. The visa applicant may or may not have had any prior affiliation with the treaty company/investor as with the L-1A visa, but we must show the person has the education and background to assume such a role prior to being issued the E visa. Minority interest is obviously a determining factor in addition to experience when applying for an E visa as a manager or executive.

NOTE: this article is provided by Gianni Toniutti, Esq., Partner of Tosolini, Lamura, Rasile & Toniutti LLP. This article and any of its content are property of Tosolini, Lamura, Rasile & Toniutti LLP and cannot be reproduced, disclosed to third party, or otherwise used without the consent of Tosolini, Lamura, Rasile & Toniutti LLP. This article is offered only for general informational purposes and does not constitute legal advice. No attorney-client relationship is created by this article. No warranties are made with respect to this article. The information provided above may not apply to your specific situation; thus, please consult an attorney with specific information about your case.

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