- Who can apply for E-2 investor visa?The E-2 investor visa is reserved for nationals of treaty countries (those countries that maintain a treaty of commerce and navigation with the United States). In addition, the families of the principal investor can obtain derivative E-2 visas. The visa can also be extended to the employees of the actual investor if the employees meet certain requirements.
- What are the E-2 treaty countries?The list of E-2 treaty countries is quite long. You can check it up from this website, or see the Department of State’s Treaty Country page at: http://travel.state.gov/visa/fees/fees_3726.html
- I was born in a non-E-2 treaty visa country, but am now a citizen of a treaty country. Can I apply for E-2 visa?Yes, as long as you are a citizen of a treaty country and are able to obtain a passport you can certainly apply for an E-2 visa. Please note though that citizens of the U.K. must also be able to prove that they are residents of the U.K.
- What are the benefits of the E-2 investor visa?The benefits of the E-2 investor visa include:
- The ability to work legally in the U.S. for your own company that is the subject of the investment;
- The ability to travel freely in and out of the U.S. while on a valid E-2 visa;
- Access to unlimited extensions as long as you maintain valid E-2 investment;
- The ability to bring your dependents (spouse and unmarried children under the age of 21) to live with you in the U.S;
- Your spouse may seek employment with any employer by applying for an employment authorization document;
- Your minor children can attend public schools in the US tuition-free;
- Unlike the H-1B visa, the E-2 visa does not require any specific educational background, just that you have invested in an enterprise and will be managing and controlling the enterprise;
- Approvals of E-2 visas tend to be fast as compared to other visas and are not subject to annual cap limits or quotas.
- What are the standards or factors the US government considers in adjudicating E-2 visa application?The standards the US government considers for the E-2 visa (covered in greater detail in the rest of this FAQ) include the requirements that:
- Your investment must be “substantial”;
- Your investment must be in a real and operating business and not a “paper company” or idle speculation;
- Your investment may not be “marginal”;
- You must have control of the funds used to purchase/operate the business and you must bear the risk of the investment.
- What does “not marginal” mean in an E-2 visa application?The stipulation that the enterprise may not be marginal means that your invested enterprise must have the capacity, present or in the future, to generate more than enough income to provide a minimal living for the E-2 visa investor and his or her family. The projected future capacity should generally be able to be reached within five years. In other words, if your investment can only make enough of money to support you and your families’ living, it would be deemed as marginal. Marginality can be documented through a strong and thorough Business Plan that documents the growth of the business, as well as the need and ability to hire additional U.S. workers.
- What kind of investment would qualify as a “Substantial Investment”?There is no set amount or threshold under the E-2 regulations for what qualifies as a “substantial investment”. However, the investment must be sufficient to ensure the successful operation of the E-2 visa enterprise. The investment must also be proportional to the total value of the particular enterprise in question and the investment must be an amount normally considered necessary to establish a viable enterprise of the type contemplated. Therefore, the location of the business and the nature of the investment would all be considered in deciding substantiality of E-2 visa investment.
- How much do I have to invest to qualify for E-2 visa?As above, there is no set amount. However, an amount in the $100,000 range typically would suffice, depending on the nature of your business. In some exceptions, lower amount of investment may be accepted as substantial investment. For example, requirement for investment in a service-oriented business would be lower than manufacturing business. The lowest amount of investment among our approved cases is $20,000.00. That, certainly, is an exception, rather than a norm.
- Do I need to incorporate a company to apply for the E-2 investor visa, or can I do business under my own name and apply for E-2 visa?You don’t necessarily need to incorporate a company for E-2 investment although we strongly recommend you to do so. Sole proprietorship will expose the owner to unlimited personal liability and it is a high risk the investor shall avoid.
- Do I need to form a brand new business to apply for E-2 investor visa, or can I buy or buy into an existing business to apply for the E-2 visa?You can choose either option, bearing in mind that if you have partners you will need to have ownership of at least 50% of the business.
- Can I borrow money to invest in my E-2 business and then apply for the E-2 investor visa?Certainly, loans from friends, home equity loans, and gifts from relatives are all legitimate sources for investment funds for E-2 visa application as long as you show that the money you invested is “at risk” of investment loss. Nevertheless, if you borrow money for E-2 investment, you must show that you secured the loan with assets you already own. Otherwise, the money is just from another person and it is not your own money put “at risk”.
- Do I need to have employees to apply for a new E-2 visa?This falls under the marginality requirement of operating an enterprise not solely for the purpose of making a living for yourself and your family. By hiring local employees, your enterprise shows that it has an impact on the local economy and is not a “marginal enterprise”. Having employees already will help the application for a new E-2 visa. However, many new E-2 companies may not have employees yet at the time of application. In that scenario, the Business Plan will have to set forth in detail the number of employees needed and time table for employee hiring.
- If I buy an existing business, do I have to close or complete the purchase transaction before I can apply for the E-2 visa?Not necessarily. You can enter into a Purchase Agreement that states that the actual closing of the sale will be contingent upon approval of your E-2 Treaty Investor’s visa while the purchase amount is put into an escrow account. This helps to show that the investment funds are being put at risk and actively invested.
- What would happen if I purchase a business, but the E-2 visa application is denied?You would still own the business and be allowed to enter in B visa (visitor visa) or visa waiver program if you meet all the requirements. However, you would not be allowed to be actively involved in management or operation of your business.
- Can I invest in a franchise business for the E-2 visa application?Yes, the same stipulations apply to purchasing a franchise business as any other, whether it be a new operation or an existing enterprise. As a matter of fact, franchise business tends to be more acceptable for E-2 visa application since franchises typically have their own minimum standard, which tend to exceed the requirement for E-2 business.
- Can I operate my E-2 business at home?No. As a real and active enterprise you must either own a commercial business premises or have a commercial lease for an actual business premises.
- Do I need to be the 100% owner of the E-2 business? Can I have partners or shareholders in my E-2 business?As mentioned above, you do not need to be the 100% owner of the business. You will be qualified as an E-2 investor as long as you own at least 50% of the enterprise and will be the controlling and managing party.
- Do I need to have business experience to qualify for E-2 visa?In order to secure your E-2 visa it is always helpful to have relevant business experience. However if you have a good business plan clearly outlining your ideas from all business perspectives like operations, marketing, and finances showing your precise planning and preparation, you can overcome the deficit of lack of experience.
- I am now in the US in H-1, F-1, or L-1 status, can I apply for E-2 visa?Yes, as long as you are a citizen of a treaty country and meet the requirement of the E-2 visa, you sure can apply for this flexible status. As a matter of fact, Lin & Valdez LLP has helped many people change their status from H-1, F-1, or L-1 to E-2 status or visa.
- Can I come to the US with VWP (Visa Waiver Program) and apply to change to E-2 visa or status in the US?No, any person who enters the U.S. under the VWP is ineligible to request extensions or to change their status. The VWP is solely used for tourism and business. You can apply for E-2, but the application will have to be filed to the consulate directly.
- Do I need to own assets to qualify for E-2 visa?Ownership of assets will help to show that you have the required funds for an E-2 visa. Loans secured using your personal assets are also a legitimate source of funds.
- Do I need to show the source of my funds for an E-2 visa investment? How much do I need to show?Yes, you will need to be able to document every source from which the funds came. The total amount used to fund the enterprise will need to be documented through bank statements, loan documents, employment records, etc.
- I don’t have sufficient funds, but my parents are willing to help me out. Can I still apply for an E-2 visa?Yes, gifts of funds from relatives are a legitimate source. However, the gifting will need to be well-documented and the source of your relative’s fund has also to be shown.
- Can my spouse work for our E-2 business if I am the E-2 visa investor?Yes, spouse of an E-2 visa holder is authorized to separately apply for and receive an Employment Authorization Document (EAD). The spouse is eligible to work for the E-2 business, or a job with any other company if he/she finds one. Other dependents however are not eligible to work.
- I am an E-2 Treaty Country citizen, but my spouse is not. Can my spouse also apply for E-2 visa?The spouse and children do not need to have the same citizenship as the principal applicant. Dependents of E-visa holders are allowed to have the derivative E-2 visas to accompany the principal applicant to the United States.
- Do I have to come to the US to apply for E-2 visa?No, if you are a national of a treaty country and residing outside of the US, or if you are in the US but do not wish to apply for change of status in the US, you may apply for your visa through an embassy or consulate.
- Can I apply for change of status in the US for E-2 Visa?Yes, you may apply to change your status in the US as long as you have maintained your status and meet the other requirements.
- If I apply for change of status in the US and I have to leave the US later, would I be allowed to come back?You will have to go through the consulate/embassy visa application process before re-entry. The reason for this is that your changed status grants you the status while you are in the United States, but traveling out of the country and re-entering requires a visa, which can only be obtained through the State Department/consulates.
- If I buy an apartment and rent it out, would I be qualified for E-2 visa?No, that would be rejected as a marginal enterprise and a passive investment unless the scale of the investment involves hiring of employees and active management of the investor.
- Do I need to invest in any specific type of business to be qualified for E-2 investor visa?No, there is no restriction in the type of investment for E-2 visa purpose as long as the investment is deemed substantial and the investor will be overseeing and managing operations.
- Do I need to get the USCIS approval before I go to the US consulate for E-2 investor visa interview?No, USCIS and U.S. consulates are overseen by two different government entities. The Department of Homeland Security oversees USCIS and the State Department oversees the consulates. The two agencies may interact on your re-entry, but for the initial E-2 application it will only be handled by one or the other based on your decision to change your status or to go through consulate application for visa issuance.
- What are the differences between applying for an E-2 visa in the US, and applying at a US consulate?The main difference between changing your status and applying at a consulate will be the interview conducted at the consulate and the fees that will need to be paid. The required documents and the stipulations are generally the same.
Consulate processing is quicker, but can be more expensive because it may involve airfare in addition to administrative costs.
Changin your status is more convenient if you are in the US, but takes much longer for approval if you do not opt for Premium Processing application for your case.
- What is the procedure of applying E-2 visa in the US consulate?Every consulate/embassy has a different way for handling their Non-Immigrant Visa (NIV) applications. However, they generally consist of applying for an interview, paying administrative fees, getting fingerprints taken, having an interview with a consulate officer, and adjudication of your case (which can take varying lengths of time depending on the amount of review needed). Some consulates ask the petitioners to send their application packets and supporting documents before your interview for “pre-screening”, other consulates request you bring the documents on the day of your interview.
- What family members can apply with me for E-2 visas?Your spouse and unmarried children under the age of 21 will be eligible for derivative E-2 visas.
- Does my family need to apply for their derivative E-2 visas at the same time with me?No, they will be able to apply even after you receive your approval. You may have the interviews at the same time, but if they wish to follow you afterwards, separate interviews can be held.
- What happens to my minor children once they turn 21?They will be unable to stay under your E-2 status, but will be able to change status on their own. E-2 children typically change status to F-1 in order to attend college.
- Can I apply for green card with my own E-2 invested business?No, you cannot sponsor yourself for a Green Card application using your own business.
However, you may be able to apply for green card through other route. For example, if your business is successful enough or you have sufficient fund, you can apply to have your status adjusted to permanent residence through EB-5, otherwise know as Immigrant Investor status. EB-5 stipulates that the enterprise must create at least 10 jobs for U.S. workers and have an investment of $500,000 or $1,000,000 depending on the area where the business will be invested in.
- Can I apply for green card when I am in E-2 visa?If the EB-5 category is a little daunting to you, you can apply for a green card in different ways, just not using your own business to do so. Other channels for obtaining a green card include family based petitions and employment based petitions.
- Can my E-2 company apply for H-1 or green card for my employees?Yes. As long as your business has the need and meets with the requirement for such applications, your E-2 company can sponsor and apply H-1 and employment-based green card for your qualified employees.
- Do I need to have a business plan to apply for E-2 visa?Yes, a well-prepared business plan is crucial to any successful E-2 application. The interviewer/reviewer will be able to glean the likely success of your enterprise using the information found in your business plan.
- Do I need to hire a business professional to prepare a business plan to apply for E-2 visa?No, the attorneys at Lin & Valdez will be able to help you draft and refine a serviceable business plan. You will, of course, have to provide documentation, information, and a general outline of the investment plan.
- What is the processing time if I apply for E-2 in the US?The normal processing time for an E-2 application through USCIS is around 3 ~ 4 months. However, if you are in need of quicker processing USCIS offers a Premium Processing service. For a filing fee of $1,225.00 (current as of 5/13/11) your case will have a guarantee to be processed within 15 days of receipt.
- What is the processing time if I apply for E-2 visa in the US consulate?The processing times and procedures vary greatly between different embassies and consulates around the world. The amount of time can vary from as little as a week to as much as several months, depending on the additional review required. Since every embassy/consulate is different there is “country specific” information that must be ascertained in advance as a planning guide.
- How long can I stay in the US with E-2 visa?Initially, a two year visa is granted to persons coming to the United States in the E category. However, this period can be extended indefinitely as long as the underlying investment is in existence and the E-2 enterprise remains operational.
- Is there any restriction to the times I can apply for E-2 visa extension?No, you may extend your E-2 visa as many times as you wish. You must bear in mind that each time you apply to extend, your case is reviewed and adjudicated anew. Therefore, it is very important that you maintain your status and make sure your business has remained operational and meets all the E-2 requirements.
- What are the requirements for an E-2 visa extension?You must be able to show that you have maintained the terms and conditions of your E-2 status; and that you have been physically present in the United States at the time of filing the application for extension of stay.
- How do I start the E-2 visa application process?Contact Lin & Valdez LLP for a consultation after visiting our website is the best way to start your E-2 visa application journey. Attorneys and staff at Lin & Valdez will try our best to make sure your journey is smooth and fruitful.
