E-2 TREATY INVESTOR VISA
The E-2 non-immigrant category requires less investment and no job creation. Although creation of jobs is expected and is a positive factor, it is not required. In many ways, the E-2 classification is similar to a green-card. The holder of an E-2 visa, his/her family, and employees are allowed to enter and leave the U.S. as much as needed, as long as the business exists. The E-2 holders may engage in self-employment (in furtherance of the qualifying investment), may remain in the U.S. for an indefinite period by extending the status every two years, and are not required to maintain ties to their home country.
1) The applicant must be a citizen of the treaty county. E-2 is a treaty-based visa, which means that there must be an existing E-2 treaty between the United States and the applicant’s country. The current list includes: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, South Korea, Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Serbia, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom.
2) The investor must have possession and control of the funds invested. This means that the applicant must own at least 50% of the business entity. Therefore, two owners of the same entity can apply for E-2, but not three.
3) The applicant must prove the legal source of funds. The source of the funds does not need to be outside the U.S., i.e. it can be a gift from someone in the U.S. But it must be demonstrated that the funds came from a legal source. The applicant must establish a clear link (chain of transfer) between the source and the funds invested. What does this mean? For example, if the E-2 applicant is using proceeds from a sale of his property in his home country, it will not be enough to simply show that there was a sale of property. To demonstrate the lawful source of funds, the applicant must show all of the following: (i) Documents evidencing the ownership of the property sold; (ii) Documents evidencing sale of the property; (iii) Bank statements and deposit/wire transfer slips (certified) showing that the money from the sale were deposited to a account when the sale occurred, e.g. the applicant’s personal account in his country; (iv) Bank statements and certified wire-transfer slips from the applicant’s personal account abroad (or in US doesn’t matter) to the US account of the E-2 business. (v) Any other documents showing the chain of custody of funds. In case of a cash transaction, it is highly advisable to, at least, use a safe deposit box holding the cash. In short, there must be some sort of documentation showing the trace of the specific funds used in E-2 business.
4) The investment must be at risk. This means that just putting the money in the bank account or buying a real estate does not qualify as investment for E-2 visa. It must involve some enterprise, something that can be an active business and at risk, i.e. a business that can be closed if things do not go that well.
5) The investment must be committed. This means that one cannot just show money in the bank account and claim investment. The money must be either spent for the business, or there must be contracts with customers or vendors showing commitment.
6) The business must be a real commercial undertaking. This means that we need to show that the business is not created solely for immigration purposes, but for purposes of profit and development. This requirement is satisfied with showing that the actual business is being undertaken, office is leased, entity is formed, equipment purchased, business plan exists, contracts are made, etc. Promising to do these things is not enough.
7) The investment must be substantial. There is no special figure. This amount may vary depending on the type of the business. Typically, an amount of $100,000 or more is substantial enough.
8) Investment must not be marginal. This means that the investor must have bigger plans, i.e. the business is not only to earn living, but to expand and grow. This is done by preparing a business plan, and showing the evidence that the business will continue growing. The E-2 applicant must also demonstrate that she has sufficient financial support, other than the E-2 business, to support her family. This is needed to make sure that the E-2 visa holder or her family do not become a public charge in case if the business fails.
9) Finally, the investor must have ability to develop and direct the business. This is proven by showing evidence of the investor’s prior experience, education and skills relevant to managing the intended business.
I.S. LAW FIRM, PLLC provides services from the beginning of the process to the final point. We can establish a business entity, negotiate agreements, draft contracts, and handle entire immigration process for the investor and the family.