The E-2 visa is a great option for self employed people, entrepreneurs or foreign companies who want to create and develop a business in the United States. This visa category is very flexible, allowing an applicant to purchase an existing business, link ownership to an existing foreign company abroad or start a business from scratch. Another great asset, is that ANY kind of business can qualify for an E-2.
I have successfully filed initial and extension E-2 applications for a wide variety of companies ranging from IT start up companies with venture capital funding and intangible asset contributions to entertainment entities and the trades. Examples include social media companies, software/application and IT companies, retail, restaurants and bars, bakeries and counseling/life coaching, real estate development and construction, architectural design and renovation.
Eligibility Requirements for an E-2 Visa:
If you are a foreign national who wishes to own, manage or work at a foreign owned company in the United States, this option is for you.
As a starting point, the United States must have a bilateral investment treaty with the applicant's home country in order to qualify. Click here for list of eligible countries. The company must be at least 50% owned by foreign nationals of the treaty country at inception and as long as E-2 visa holders work for the US company.
The initial applicant is called the principal investor and can be an individual investor or foreign company. As a general rule, the US company must be running or ready to start operations, but for issuance of the E-2 visa. Using ESTA or a B-1 visa will allow the principal E-2 applicant entry to the US in order to set up the business pre-filing. Here is a list of all pre-filing requirements:
- The United States must have a bi-lateral trade agreement with the foreign national's country of citizenship, with the company owned at least 50% by nationals of this country
- The individual investor and/or business applicant must be a national of the "treaty" country
- For a business to meet the nationality requirement, at least 50% of its owners MUST be foreign nationals who are citizens of the treaty country
- The company within the United States must be an operating commercial enterprise or ready to start operations
- The principal applicant must have made substantial investment into the company (monetary or intangible assets). Investment may also come from other lawful sources, US or foreign. No specific minimum dollar amount constitutes "substantial" but as a general matter, it must be enough to cover start up costs with enough money left over to get the company moving.
- The enterprise must stimulate the US economy, primarily through creation of employment for US workers, trade and income.
- The initial individual investor and/or business applicant must prove he or she will develop and direct the investment company
What Kind of Company Can Obtain the E-2 Visa:
As outlined above, almost any type of company may sponsor E-2 visa employees. That is one of the factors that makes this a fantastic visa!
Eligibility Requirements for E-2 Employees:
In addition to the principal E2 applicant, there are two E-2 categories for employees, who may also enter on the E-2 visa.
An E-2 applicant must fall into one of the following categories:
- Will serve as executive or manager
- Has essential skills or specialized knowledge of the product or service offered
- Is the principal investor and will be responsible for the direction and development of the investment
Procedures to Obtain E-2 Status and an E-2 Visa:
Over the past fourteen years, I have gained experience handling complex E-2 applications through a diverse range of US consulates abroad and also through submitting applications with DHS inside the United States. My experience ensures that the applications meet not only the E-2 legal requirements but also the organizational and procedural demands of particular consulates. I normally recommend using the consular processing method for initial and extension approvals, as it is more streamlined and convenient for most applicants; has a higher chance of approval and costs less, but am happy to file for clients with DHS as well.
I encourage E-2 applicants to work with their immigration attorney from the very initial business development stages. This planning can ensure that the client's vision and company will merit approval of the initial E-2 visa and importantly of renewals.
For a person filing abroad, there are advantages. Unlike other visa categories, the E-2 application is filed directly with the U.S. consulate in the person's home country (as opposed to being first filed with DHS). Depending upon the consulate, E-2 application is either mailed in or brought to interview. Appointment times vary from 1 week to about 3 months. As the Consulate evaluates the merits of the underlying petition, it is critical that the company and investment are thoroughly and clearly documented. Once the underlying business is determined to merit the E classification, the applicant is issued an E-2 visa. The U.S. Consulate normally issues a multiple entry E-2 visa that is good for one to five years. Upon each entry to the US, the DHS officer will generally assign two years of E-2 status to the E-2 applicant.
For those applicants lawfully in the United States who do not want to travel internationally, the employer files an E-2 petition with DHS indicating a request to change the applicant's status from B-1 (or other visa category) to E-2. It is important to note that ESTA entrants are not eligible for this procedure. The applicant does not need to depart the U.S., instead automatically switches to E-2 status on the start date indicated on the DHS approval notice. DHS is notorious for issuing onerous Request for Evidence packets for E-2 cases, often asking for documentation that has already been submitted or is not relevant. Regardless, I have been very successful with obtaining approval for these cases.
An E-2 applicant is generally given two years of authorized stay. The E-2 visa can then be renewed indefinitely in two-year increments, with some exceptions for employees of start-up companies.
Green Card Procedures for E-2 Visa Holders:
It can be very difficult for E-2 visa holders to obtain a green card in this category. However there are exceptions to this rule. For example, if the US company is linked to a foreign company and the applicant worked for at least one year at the foreign company prior to entry in the US, that applicants may be eligible for a green card much more quickly than others applying for a green card via employment. Generally there are three steps to obtaining a green card via employment. However certain E-2 Executives and managers do not need to file the time consuming first step (labor certification application). Instead, the applicant moves on to step two (the I-140 immigrant petition) and step three (the green card application).
Spouses and children under 21 are also eligible for the E-2 visa category. Additionally, spouses are allowed to apply for work authorization.
Other Business Visas Which Might Apply:
In addition to E-2 visas, DHS also grants business immigration visas to business professionals, intra-company transfer employees and applicants seeking on-the-job training. Some categories require a bachelor's degree, but several work visas exist for those lacking a four year college level degree. For more information about these business immigration visas, please read these articles:
- B-1 and B-2 VISAS: Business and Pleasure
- F-1 VISA: Employment Options for Students
- H-1B Visa: Speciality Employees
- H-3 Visa: Training Visa
- J-1 VISA: Trainee and Intern Exchange Visitors
- L-1 A and L-1B VISA: Managers, Executives and Specialized Knowledge Employees
- O VISA: Persons of Extraordinary Ability
- P Visa: Internationally Recognized Athletes, Artists, Entertainers and Culturally Unique Entertainers
- TN VISA: Canadian and Mexican Workers