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New Jersey/New York Work Visa Attorney

E2 Treaty Investor Visa

 

1. Q: What is E-2 treaty investor visa?

 

A: The E-2 treaty investor visa is a nonimmigrant visa for who is a citizen or national of a treaty country and who wishes to enter the United States solely to develop and direct the operation of an enterprise in which he or she has invested or is in the process of investing a substantial amount of capital. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized capacity. Ordinary skilled and unskilled workers do not qualify.

 

2. Q: How do I qualify for E-2 visa?

 

A: To qualify for E-2 visa:

 

• A investment treaty must exist between the United States and your country of nationality


The following countries have investment treaties with the United States which allow for conferral of E-2 (treaty-investor status) to the nationals of said country:

 

 

Albania, Argentina, Armenia, Australia, Austria,Azerbaijan,

Bahrain, Bangladesh,Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria,

Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia,Czech Republic,

Denmark, Ecuador, Egypt, Estonia, Ethiopia,

Finland, France, Georgia, Germany, Grenada,Honduras,

Iran, Ireland, Italy, Jamaica, Japan, Jordan,

Kazakhstan, Korea (South), Kosovo, Kyrgyzstan,

Latvia, Liberia, Lithuania, Luxembourg, Macedonia, the Former Yugoslav Republic of (FRY), 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, Yugoslavia

  

• Nationals of the treaty country own at least 50 % of the stock of the U.S. company i.e. the investing company has the nationality of the treaty country
• You are a national of the treaty country
• You must be serving your company in a capacity that is supervisory or executive in nature or involves skills essential to the operation of the business (key employee); or you are a 50 % owner of the company
• A qualifying investment must be active
• The investment must be substantial
• The investment must be at risk
• The investment cannot be "marginal" in nature
• You intend to depart at the conclusion of your duties in the U.S.

 

3. Q: What is the nationality of the investing company for the purpose of E2 visa?

 

A: The nationality of the company engaging in investment is the nationality of those persons who own at least 50% of the stock of the company. The nationality of the persons owning the corporate stock is their country of citizenship. Note, however, that foreign nationals (who are nationals of the treaty country) who are also U.S. permanent residents cannot be counted towards determining at least 50% ownership.

 

4. Q: What is an ‘active investment’?

 

A: The investor is required to make a commitment of funds that represents an actual, active investment. Passive investment doesn't count. For example, an investment in land would not qualify since it would be considered as passive investment. However, if the investment was accompanied by submission of development plans to authorities and contracts for building, it would be active investment. It is acceptable to use an escrow account to protect the investor in the event the visa is denied. However, the investor must present other evidence showing the investment will be active. In addition, the investor cannot just invest the capital and not take part in the actual managing or directing of the business. The investor must manage the business and must exercise a controlling interest in the business.

 

5. Q: What is a 'substantial investment'?

 

A: There is no minimum dollar amount necessary in order for the investment to be considered substantial. However, in order for an investment to be considered substantial by the USCIS, it must meet one of two tests:

 

(1) It has to be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses); or

 

(2) It has to be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses).
Also, under USCIS guidelines, the larger the total value of the enterprise or the cost to start up the enterprise, the smaller the percentage of the total investment the investor must put up to meet the substantiality requirement. Of course, a million dollar investment by a large foreign company will probably be viewed as being substantial regardless of its proportion to the total value of the enterprise.

 

6. Q: What does "at risk" mean?

 

A: The capital must be subjected to partial or total loss if investment fortunes reverse. It must be "the investor's unsecured personal business capital or capital secured by personal assets". Mortgage debt or a commercially secured loan is not sufficient. Uncommitted funds in a bank account are insufficient. A second mortgage on a home, unsecured or unencumbered loans or assets and loans on the person's personal signature are acceptable. Inheritance of a business is not an investment. The statute does not require that the source of the funds be outside the U.S. Funds can not be obtained directly or indirectly through criminal activity.

 

7. Q: What does "marginal" mean?

 

A: Investment is marginal if it does not have the present or future capacity to generate more than a minimal living for the investor and his or her family. Investment cannot be solely to earn a living for the investor and his family.

 

8. Q: Can I change to E-2 status through Visa Waiver Program?

 

A: No, if an alien is admitted to the United States through the Visa Waiver Program (VWP), he can not change his non-immigrant status. Therefore, for those who anticipate wanting to change to E-2 status in the United States, we recommend coming through a B-1 or other visa rather than through the VWP.

 

9. Q: How long can I stay in the US on investor visa?

 

A: You may stay on a prolonged basis with unlimited five year visa extensions or two year status extensions as long as you maintain E-2 qualifications. There is no limit on the number of extensions you can take.

 

10. Q: Can my dependents work on E-2 visa?

 

A: Yes, your spouse may seek employment by applying for Employment Authorization. However, your children are not allowed to work in the U.S.

 

 

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201-345-7000 or 646-233-2606

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