E2 Visa for investors and employees

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The E2 Treaty Investor visa allows the investor to live and work in the US to direct and develop the business, and allows entry of Executive, Management and Essential skills employees.  In larger businesses management and executive level employees may be sent to the US instead of the owners of the business. Employees that are also nationals of the same E2 visa country as the investor may also qualify for an E2 visa.

If the business is 50/50 controlled by nationals of two different E2 eligible countries then nationals of both countries may be able to gain entry under the E2 visa scheme.  The E2 visa can continue to be extended indefinitely as long as the business continues in the US. 

Applying for E2 visa from within US and Premium Processing

If applicants are already in the US and can apply for an E2 visa from within the US this  may be worth considering. There is also the option of premium processing .

L1 Visa worth considering instead of E2 Visa 

Many businesses may also wish to consider the L1 visa option.  One benefit of the L1 visa category for executives and managers is that obtaining a.n L1 visa first may make it easier to obtain a "Green Card" in future. There is also no investment requirement for the L1 visa.  However, you need to show employment outside the US for at least one year in the last three years.

Unlike the H1B visa category, there is no quota for E2 visas.  The investment necessary to qualify for E2 Treaty Investor status varies and there is no set minimum. For consultancy businesses, for example software businesses, this could be tens of thousands of dollars or less in some cases.  However, for smaller investments to register the business as an E2 business can be more difficult.

E2 Visa investment requirements

When you apply for E2 registration of a business you need to be in the process of investing money.  Unless an escrow arrangement is possible, you should show that you have made a substantial investment before applying. An escrow arrangement is possible in some circumstances.  For example, if you are buying an existing business money could be held in escrow to only be invested if you are granted an E2 visa.  You should have realistic plans to establish and fund the business. Usually, the qualifying E2 visa business should eventually create employment for US citizens and residents of the US.

Nationals of many Countries can apply under the E2 visa scheme.  Unfortunately, nationals of India and China cannot apply under the E2 visa scheme unless they wish to gain entry as a spouse of an E2 visa holder or can gain some other citizenship.  Some Indians are applying under the fast Grenada citizenship program to become eligible to apply under the E2 Treaty Investor visa scheme.  Even if you have to apply for another citizenship first under a Citizenship investment scheme, this is probably still a cheaper and faster alternative to the EB5 immigrant investor program that has greatly increased in cost since 21 November 2019 to a minimum investment of $900,000.

The investment used to qualify for an E2 visa must be in an active and operating business that requires people to work in the business. Therefore businesses that do not require any employees which could include passive investments in say property or stocks and bonds do not qualify. Usually at least part of the investment should have been made or money should be held in escrow before applying for E2 Treaty Investor Registration and E2 visa status. If you are buying an existing business it may be possible to apply for E2 registration based on a purchase agreement with the money being held in escrow, with the investment only going ahead if the visa is granted.  The business needs to be registered as an E2 Treaty investor business before you can apply for an E2 visa.

E2 Visa and Escrow Agreements

Many investors are worried about investing money even before they have been granted a visa.  It may be possible to have money held in an escrow account only to be spent if the E2 visa is issued.  The following are some examples where this might be feasible:

• You are purchasing an existing business. The money would only be transferred to the seller if the E2 visa is granted.
• You will be spending money on a lease agreement.   The money would only be transferred to the landlord if the E2 visa is granted.
• You will be spending money on some equipment.  Again only to be transferred if the visa is approved.
   

E2 Visa and Green Card option

For investors who do not wish to invest at least $900,000 under the EB5 immigrant investor Green Card Program the E2 treaty investor visa category (or possibly the L1 visa) is worth considering. You will usually need to create employment in the US under the E2 treaty investor scheme, but unlike the EB5 immigrant investor visa scheme you do not need to create employment for a minimum of ten people and there is no visa quota.

While the E2 visa can continue to be extended indefinitely, this is not the same as having a "Green Card".  If you would like a Green Card it may be an idea to try and gain entry as an international executive or manager first under the L1 visa.  Otherwise to obtain a permanent employment based immigrant visa you will in most cases need to be sponsored by an employer.  There are a limited number of options where applicants can self petition when applying for a Green Card.  One example of this is to self petition on the basis of an EB1A employment based immigrant visa for those with an extraordinary ability in the sciences, arts, education, business, or athletics.  There is also the EB2 National Interest Waiver immigrant visa category for those who wish to self-petition.

E2 Treaty Investor Visa Countries

Please note that new businesses based on ownership by nationals of Ecuador can no longer be registered under the E2 visa scheme.  However, Ecuador nationals can still apply for E2 visas as employees of an existing E2 registered business. 

E2 visas may only be applied for by people or companies from the following Countries:

Here is an updated table of E2 visa countries based on the official list from the U.S. Department of State website:

E2 Investor specific requirements for British Nationals and others

The UK had the first agreement to come under the E2 Treaty Investor visa scheme with the United States in 1815.  The unusual requirement for the UK compared to citizens of other Countries is that British citizen investors need to show residence in the UK. This can be a complicated issue to deal with if the E2 investor is currently living abroad. It may be possible to show residence in the UK by various means:

• Rental or ownership of a home in the UK.
• UK Payslips.
• Submitting UK Tax Returns.
• Other connections with the UK.
• UK based business making investments.

It is up to the discretion of the visa officer as to what will be acceptable.

There is also the issue of how long the E2 visa is valid for.  For many Countries it is five years.  It is five years for the UK, Germany, Japan, Pakistan and a number of other Countries. It is only three months for example for Bangladesh and the Ukraine.  Applications made in the US to the USCIS are usually granted for a period of two years.  The good news is that as long as the E2 business continues in the US you can continue to extend your visa indefinitely.

E2 Treaty Investor Applicant Requirements

Investors from qualifying countries may apply for an E2 treaty investor visa in order to 'Direct and Develop' their business. They may also apply for E2 visas for key managerial and specialist employees which can be particularly useful for medium and large size businesses.

In contrast to the L-1 visa, there is no requirement that such employees have worked for the business outside the US for a period of one year in the last three years, and there is no requirement that under the E2 visa scheme that the business continues operating outside the US.

E2 treaty Investor applicants should meet the following conditions:

• There has been a substantial investment in the US or in some circumstances money is held in escrow to be transferred if the E2 visa is granted. There is no specific investment requirement. Some businesses, for example in the IT sector, may qualify with investments of about $10,000. Investments could include travel, sales and marketing, equipment purchases and a range of other expenses.  However, E2 visa registration with smaller levels of investment can be more difficult.

• Money has been put at risk for the E2 Treaty Investor business: the investment must entail some risk to the investor (it may not be all in the form of unguaranteed credit). You may need to have an office lease agreement in the US.  If you have a purchase agreement and are taking over an existing business, you can instead have money held in escrow.

• The investor will direct and develop his/her investment. E2 visa treaty investors with the requisite nationality will usually need to have at least a fifty percent ownership and control of the US business.

• The enterprise is (or will be) active. In order to be 'Directing and Developing' their investment, the E2 Treaty Investor should be involved in managing the business.

• The E2 business should not be considered to be "marginal". US workers are (or will be) employed. The treaties envisage more than just creating a job for the principal investor, but there is no requirement to employ a particular number of US citizens or residents. It should be possible to meet the requirements by employing only a small number of employees. Showing that you will employ two or three employees in the next one or two years will often be enough.

• You should have a business plan detailing the future plans for a new business.  This should have detailed information on the new business and the plans to employ new staff in the US.

• Details of the skills, qualifications, and work history should be provided for any prospective employees of the E2 Treaty Investor, and if appropriate for the investor themselves.

• That the principal investor, and any other E2 visa staff, must be able and willing to leave the US upon termination of their E2 visa status, since the E2 is a non-immigrant visa category. However, the E2 Treaty investor visa can continue to be extended indefinitely.

E2 Visa Consular Processing or Change of Status

In most cases it is recommended that Consular processing is used and an application is made at an US Embassy abroad.  The advantages of Consular Processing are as follows:

• It is usual that E2 Registration and E2 visa is granted for a longer period of time at an Embassy.  This depends on nationality and the policy at an US Embassy.   However, in many cases the validity period when applying outside the US is five years.  This is true for British citizens and many other nationalities.  If you apply for change of status in the US the maximum period granted is two years.
• If you apply under Consular processing not only is it more likely that E2 Registration and Visa will be for a much longer period, you will also not need to apply again   If you are successful in your application for an E2 visa you should be able to travel freely in and out of the US without having to make another application.  If you have applied via change of status you have to apply again for a visa at an Embassy or Consulate.  There is therefore an added risk that the US Embassy will not accept the decision of the USCIS in the US.

The advantage of applying for an E2 visa via a change of status in the US is that with premium processing a decision can be reached in fifteen days.  You will firstly need to have a non-immigrant visa for the US, which is not under the visa waiver scheme.  You cannot change status under the visa waiver scheme.  When you leave the US you will need to apply for another E2 visa at an Embassy or Consulate.  The Visa Officer will then have to decide whether they agree with the decision of the USCIS.

E2 Treaty visa application process

• You contact us

• workpermit.com considers the application. If your company, the position and the candidate are eligible for registration as an E2 Treaty Investor, we e-mail to you:

  • A formal instruction form to return

  • Details of any additional data required, and confirmation of which documents we need

• You email and/or provide documents for the application.

• Workpermit.com completes your E2 Treaty registration application and submits it to the Treaty Visa section at the appropriate US consulate or Embassy.

• After registration as an E2 Treaty Investor business, visas can be obtained for principal applicants, employees and dependants in about two weeks. You provide us with relevant information and we prepare and submit the application to the Treaty Visa section.
   

E2 Visa Employees

Once the principal applicant has obtained registration as an E2 Treaty Investor they can obtain E2 visas for qualifying employees who are usually the same nationality as the investor. Obtaining the E2 registration could take some months depending on the jurisdiction, and obtaining E2 employee visas usually takes about two weeks.

Two types of employee qualify for E visas:
 

E2 Executives, Managers and Supervisors

• Executives and Managers should be in a senior position and manage the whole business or a key part of the business. 
• In larger businesses the owners of the business may not actually in practice spend much time in the USA.
• Such personnel should be able to demonstrate their executive or managerial experience, though there is no requirement that they have worked for the principal trader or investor for any period of time, as there is with the L-1 visa.
• Documents required for the E2 visa application would likely include job description, resume, and supporting letter from the employer.

E2 Specialist or Essential Skilled Workers:

This is a good way of employing highly skilled level people over in the US. You should demonstrate that:

• The employee has specialized knowledge of the business which may be difficult to find in the US.

• The employee is necessary for the running of the principal trader or investor's business in the USA.

Note that, depending on nationality, a 'visa issuance fee' of $105 is often required in addition to the usual visa application fee for E visas.

Family and dependents of E2 visa holders

Spouses and dependents of E2 visa workers are can also apply for E2 visas, and will normally be granted the same period of stay as the principal E2 visa holder. E2 spouses and dependents do not need to be the same nationality as the principle applicant.

Spouses are allowed to work. However, while not necessary, some E2 spouses may wish to apply for work authorisation as evidence of the right to work, which can take some months. Children under the age of 21 can study but unfortunately are not allowed to work under the E2 Treaty Investor visa category.  Children after reaching the age of 21 years of age under E2 visa status will need to find some other US visa category to be able to stay in the US.

Further information, E2 visa help, and advice

Workpermit.com's team of specialists has over 30 years of experience in immigration services, and have helped thousands of people to study and work in the US and other Countries. All applications for US visas are dealt with by an in-house US qualified lawyer who is also typically a member of the American Immigration Lawyers Association (AILA).

For more information and advice on US immigration law and US visa applications please contact us on 0344 991 9222 or at london@workpermit.com