E2 Visas - Statutory Requirements

The statutory criteria used in evaluating an E2 visa application are as follows:

  1. The requisite Treaty must exist
  2. The applicant must possess the nationality of the Treaty country
  3. The applicant has invested or is actively in the process of investing
  4. The enterprise is a real and operating commercial enterprise
  5. The applicant's investment is substantial
  6. The investment is more than a marginal one (solely for earning a living)
  7. The applicant is in a position to develop and direct the enterprise
  8. The applicant intends to depart the United States when the E2 status terminates

Taking each of the above listed categories in turn, the example below is of a United Kingdom national who establishes a company in the United States and purchases an existing United States business, wishing to apply for an E2 visa:

1. The requisite Treaty must exist between the United States and the Country or Origin

The United States Treaty with the United Kingdom was established on 3rd July 1815 – documentation from the United States Department of State is available as proof, if necessary.

2. The applicant/business must possess the nationality of the Treaty country

The United States Company that the applicant has established will be owned at least 50% (preferably 100%) by the applicant who is a national of the United Kingdom.

3. The applicant has invested or is actively in the process of investing

The investment will be the amount of the purchase price of the business that you are buying. For example, if you are buying a lawn maintenance business at a purchase price of $140,000, your initial investment in the United States will be $140,000. However, legal fees, accountant fees, business planner fees, and corporate attorney fees may be included towards your investment amount. Therefore, if you spend a total of $15,000 in application completion fees and you purchase a business for $140,000, then the total investment is $155,000.

The concept of investment connotes the placing of funds at risk, in the commercial sense, in the hope of generating a financial return. If the investment funds are not subject to partial or total loss if business fortunes reverse then it is not classed as an investment.

An E-2 visa applicant must demonstrate possession and control over the investment funds and have proof that these have been received by legitimate means (e.g. savings, gift, sale of an asset). Where are the funds coming from for your investment in the United States? Can you document the source of the funds?

To be "in the process of investing" for E2 purposes, the funds must be committed to the investment and the commitment must be real and irrevocable. Also, to be classed as "in the process of investing", the applicant must be close to the start of actual business operations and not simply at the stage of signing contracts or looking for suitable locations and property.

To cover this requirement, once the decision has been made on the decision to purchase in order to commence the investment in the United States, the business broker will arrange for an Asset Purchase contract to be drawn up between your United States Company and the current owners of the business. The Asset Purchase contract will assist in substantiating that an applicant is ready to commence business in the United States, subject to E2 approval.

The Asset Purchase contract for the purchase of the business will be conditioned upon approval of the E2 visa application. If the application is approved, the sale goes through – the seller gets the money, the applicant gets the business. If the application is denied, the escrow money is returned. The fact that funds have been committed for the purchase of the business and those funds are held in an escrow account, and also that the applicant is ready to commence business in the United States upon approval of the E2, will prove that the funds are irrevocably committed and that the applicant is actively in the process of investing.

It is important to note that mere intent to invest or having possession of uncommitted funds in a bank account will not meet the criteria of an investment or being actively in the process of investing.

4. The enterprise is a real and operating commercial enterprise

The investment enterprise must be a real, active and operating commercial enterprise which produces services or goods for profit. It cannot be an organization on paper only and it cannot be an idle or speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by the investor without the intent to direct the enterprise. The test is whether the business requires "active supervisory or executive oversight" on a day to day basis. The enterprise must meet all applicable legal requirements for doing business in the United States.

For the sake of clarification, the word "enterprise" means the United States Company that is established and the business that it will undertake; i.e. the service or goods provided by the business that is being purchased.

Under this criterion, the Embassy will look at the documentation for the company that is established, i.e. the company registration documents, Federal Employer's Identification Number, the founding documentation for the operation of the company – Operating Agreement, Member or Share Certificates, etc. The Embassy will also look at the documentation for the business to ensure it is a real and active commercial business (required active business licenses, tax returns, employee data, etc.).

5. The applicant's investment is substantial

The purpose of this requirement is to ensure, to a reasonable extent, that the business invested in is not speculative, but is, or soon will be, a successful enterprise. The rules regarding the amount of funds committed to the commercial enterprise and the character of the funds (i.e. where the funds came from – savings, sale of asset, etc.) are intended to eliminate risky undertakings and to ensure that the E2 investor is unquestionably committed to the success of the business.

No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E2 purposes.

It is important to note that a successful applicant will purchase a business that he/she will be committed to and be motivated to make successful.

6. The investment is more than a marginal one solely for earning a living

A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the applicant and his family. An enterprise that does not have the capacity to generate such income, but that has a present or future capacity to make significant economic contribution, is not a marginal enterprise. The projected future earnings should generally be realizable within 5 years from the date the applicant commences normal business activity of the enterprise.

7. The applicant is in a position to develop and direct the enterprise

In all E2 Treaty investor cases, it must be shown that nationals of a Treaty country own at least 50% of an enterprise. It must also be shown that a national of the Treaty country, through ownership, develops and directs the activities of the enterprise.

8. The applicant intends to depart the United States when the E2 status terminates

One important thing to bear in mind is that the E2 visa is a NON-IMMIGRANT visa, meaning that applying for an E2 visa is a request for permission for a temporary period of time to live and work in the United States. However, the applicant does not need to establish the specific amount of time that they wish to remain in the United States.

The E2 is not a request for permanent residency. You will be eligible (subject to requirements) to renew your E2 visa when the original period expires. There is NO LIMIT on the number of times an E2 visa can be renewed.

One of the main issues in determining if an applicant qualifies for an E2 Treaty Investor visa is intent – the applicant must prove to the Embassy Officer that all intentions are to live and work in the United States temporarily (i.e. for the duration of your visa). If the Officer is of the opinion that intentions are for a more permanent basis in the United States, then it is likely that the visa application will be denied, even if all of the other E2 criteria have been met.

An E-2 visa applicant must provide a written statement of intent to depart the United States when the status ends. Such a statement is normally sufficient, unless the Embassy Officer has any indications that your intent is not to depart. Therefore, it is advisable to provide additional proof (as well as your statement of intent) of ties abroad that would compel the applicant to leave the United States at the end of your status. "Ties" are the various aspects of life that bind you, to the applicant to country of residence – i.e. a job, a house, a family etc.

Visit our E2 visa process page for a step by step guide on the E2 visa application process. We have also compiled a list of the most frequently asked questions we receive about the E2 Treaty Investor Visa in an effort to help you obtain as much information needed as possible.

Contact our Florida-based Immigration Law Firm for your E2 Visa Application

The Law Offices of Suzanne E. Vazquez, P.A. has a professional team dedicated to helping individual and businesses with all their migration needs, including E2 visa applications. The E2 visa process is complicated and usually confusing. Our Board Certified Immigration Attorney (Admitted and Accredited by the Florida Bar) prepares your E2 visa application to ensure that the evidence required under the statutory criteria for a successful E2 application is met. Call us today at (407) 674 6968 or fill out our online form and will will contact you as soon as possible. You may also call us at 813-400-0055 to make an appointment at our Tampa location.

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The Information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own particular case.