E-2 Visa: The Non-Immigrant Visa Category

The E-2 Visa is a non-immigrant category designed to facilitate investment in the United States by foreign nationals from countries with which the US has a qualifying treaty.

It is an excellent option for individuals looking to manage or develop businesses in the US. However, it’s not quite like the EB-5 investor visa program.

E-2 vs. EB-5: Telling the Differences

Before getting into the nitty-gritty of the E-2 Visa, let’s first see how it might be different from the EB-5 petition for investors.

The E-2 Visa and EB-5 Visa are both pathways for foreign nationals to invest and potentially immigrate to the United States, but they differ in several key aspects.

1. Investment Amount

• E-2 Visa: The Treaty Investor Visa does not have a set minimum investment amount, but it’s assumed that the number needs to be “substantial.” The investment. It should be enough to ensure the successful operation of the business. The specific amount varies based on factors such as the business type and location.
• EB-5 Visa: The EB-5 Visa program mandates a minimum investment of either $1,800,000 in a new commercial enterprise or $900,000 in an area with a high unemployment rate or rural region.

2. Job Creation

• E-2 Visa: While the E-2 Visa does not have a specific job creation requirement, it is expected that the investment will result in job opportunities for American workers;
• EB-5 Visa: The EB-5 Visa program needs you to set up at least 10 full-time jobs for the local workforce within two years of the immigrant investor’s admission to the United States.

3. Nationality Requirement

• E-2 Visa: This visa is available only to investors from countries with which the United States has a qualifying treaty;
• EB-5 Visa: The EB-5 Visa program doesn’t have nationality restrictions—anyone from anywhere can apply as long as they meet the eligibility criteria.

4. Visa Type

• E-2 Visa: The Treaty Investor Visa is a non-immigrant visa, meaning you’re not approved for a green card by default. However, the visa allows investors and their immediate families to reside in the US for the duration of their business activities;
• EB-5 Visa: The EB-5 Visa is an immigrant visa program. Successful EB-5 applicants and their immediate family members are eligible to become US permanent residents, with the potential for naturalization.

5. Location of Investment

• E-2 Visa: E-2 Visa investments must be made in a business headquartered in the US. The location and type of business are flexible, and investors can actively manage the business;
• EB-5 Visa: EB-5 investments can be made in either a new commercial enterprise or a failing business. Additionally, the EB-5 program includes the option of investing in a Regional Center, which allows investors to pool their funds into larger projects and may count as indirect job creation.

6. Investor’s Role

• E-2 Visa: These visa holders are expected to play an active role in the management or operation of the business in which they’ve invested.
  EB-5 Visa: While EB-5 investors can be involved in the management of their investment, they are not required to have a day-to-day role. They can be passive stakeholders in the business.

7. Duration and Renewal

• E-2 Visa: E-2 Visas are typically granted for shorter periods of up to two years. However, they can be renewed for two more years countless times as long as the business and investment continue to meet the visa requirements;
• EB-5 Visa: Successful EB-5 applicants receive conditional green cards valid for two years. After meeting the job creation requirements, they can apply to remove the conditions, change their status, and obtain a permanent green card.

Eligibility Criteria

To qualify for a Treaty Investor Visa, several essential criteria must be met. You already got the outline of these criteria in the previous section, but the following should clear the air and provide more details regarding specific requirements.

• Treaty Country Requirement

To qualify for an E-2 Visa, an applicant must come from a country that maintains a qualifying treaty with the United States. The US Department of State maintains an official list of these treaty countries. It is paramount for potential applicants to ensure that their home country is on this list and that they qualify for an E-2 and not just an L1-A Intracompany Transferee Visa before proceeding with the application.

• The Required Substantial Investment

A foundational requirement for obtaining an E-2 Visa is making a substantial investment in an American business. The term “substantial” can vary depending on the industry, location, and the specific circumstances of the investment.

• Active Role in Business

E-2 Visa applicants must actively participate in the management or operation of the US enterprise.

Passive investments, such as purchasing stocks or real estate without direct involvement in the business’s day-to-day operations, typically do not prove your E-2 visa eligibility. However, they could still make you eligible for an EB-5 Visa.

The Application Process

You should always go the route of visa application assistance from a professional like our very own immigration lawyer, Ingrid Borges Perez.

According to Ingrid, the journey to an E-2 Visa through a franchise or any other business in which you have an active role begins with the business entity itself.

Let us explain.

• Business Entity Formation

Before starting an E-2 Visa application, foreign investors must first establish or acquire a US business entity. You can’t aim for a visa without running a business enterprise in the US.

According to the dedicated page for E-2 Treaty Investors, you could own sole proprietorships, partnerships, corporations, or limited liability companies (LLCs). The choice of business structure should align with your goals and business plans.

• Investment

Once the business entity is established, you must make a qualifying investment. The investment amount can vary widely based on factors such as the business type, location, and overall cost. Generally, the investment should be substantial and placed at risk.

• Submitting Form DS-160

The subsequent step involves the submission of Form DS-160, known as the Online Non-immigrant Visa Application. This form necessitates the provision of personal information, details about the investment, and other required data. You can retrieve your application any time after submitting it.

• Visa Interview

After successfully submitting Form DS-160, you must apply for an interview at the US Embassy or Consulate in your home country.

During the interview, you will be required to provide supporting documents, such as:

• Comprehensive business plan;
• Financial records;
• Tangible evidence of the investment.

Benefits of the E-2 Visa for Investors

Since there are three visa petitions for investors, it’s only reasonable to mull them over. Below are some of the benefits of this non-immigrant travel permit for investors and their family members.

• Flexibility

One of the standout features of the E-2 Visa is that its holders can renew their status indefinitely as long as they continue to maintain their investment and conduct their business operations in accordance with the visa requirements.

This affords investors a sense of long-term stability and the potential to grow their US businesses over time. They can take their time making crucial business decisions that may make or break their enterprise, for that is what the validity of their visa hinges on.

• A Chance to Be with Family

E-2 Visa holders are granted the privilege of bringing their immediate family members along for the journey. This includes spouses and any unmarried children under the age of 21.

Notably, spouses of these visa holders can apply for work authorization to seek employment or even embark on entrepreneurial ventures.

• No Set Minimum Investment

Unlike some other immigrant investor visas like the EB-5, the Treaty Investor Visa program does not specify a minimum investment amount. This flexibility broadens the scope for potential investors, making it an inclusive option for a diverse range of individuals and business ventures.

• Speedy Processing Times

Compared to many other visa programs, the E-2 Visa often boasts relatively quick processing times. The expeditious processing enables investors to establish their US businesses and commence operations without significant delays, fostering a dynamic and agile approach to entrepreneurship.

Since the processing times differ from country to country, we can’t say how long your approval will take. However, the wait time is two to eight weeks for most countries, especially if your case isn’t too complicated and you meet the criteria just so.

Managing Expectations: The Challenges of an E-2 Visa

The challenges associated with an E-2 visa lie in its limitations, vagueness, and ill-defined nature—you’ll see what we mean.

• Treaty Country Limitations

As previously mentioned, the primary eligibility criterion for the E-2 Visa hinges on whether the applicant’s home country maintains a qualifying treaty with the United States.

Unfortunately, citizens of countries without such treaties are not eligible for this visa, potentially limiting the opportunities for some investors.

On the bright side, investors from such countries can always consider the EB-5 Visa, which has no such limitations and can be availed by anyone who invests the minimum required by the US Department of State.

• The “Substantial” Requirement

Determining what constitutes a “substantial” investment can often be subjective and may vary from one case to another. How you tackle this could spell a benefit or challenge for your visa application process.

As an investor, you should be prepared to provide substantial evidence demonstrating that your investment meets this requirement. This often requires the expertise of legal counsel, which is where you’ll need our services.

• Visa Duration

While E-2 Visas can be renewed indefinitely, they are typically issued for two years, as mentioned previously. This necessitates that visa holders periodically renew their status, a time-consuming process riddled with additional costs you should prepare yourself for if you plan to stick around long-term.

• Limited Path to Permanent Residency

For those seeking a direct route to a green card and eventually citizenship, the E-2 Visa may not be the most straightforward option.

As mentioned above, this visa category is non-immigrant, meaning it does not inherently lead to permanent residency. You’re initially allowed on US soil for two years, followed by increments of two more years.

Investors with long-term aspirations of becoming American citizens may need to explore alternative immigration pathways, such as employment-based or family-sponsored visas.

Apply for the Short-term Visa for Investors with Legal Counsel

The Investor Visa program has a lot to offer, including endless business options, to a foreign investor not planning to grow roots in the US.

Unfortunately, it also comes with specific challenges, such as the need to meet the “substantial” requirement and navigate visa renewals every couple of years.

As with any significant investment and immigration decision, it is crucial for you to thoroughly assess your goals and seek (non) immigration law consultations to make informed choices that align with your unique circumstances and ambitions. You should also recruit legal counsel to seek extensions when your two years are near completion.

Contact us for inquiries and concerns.