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E-2 Treaty Investor Visa Largely Unknown To Many Foreign Workers Around The World, Unaffected By Trumps Recent Non-Immigrant Ban

By Alexandria Sheffield

Alexandria Sheffield is an Attorney at Law for the Immigration Law Offices of Hadley Bajramovic, London, UK. She provides counsel in all aspects of corporate immigration to start-ups, multinational conglomerates, entertainment production companies, among others.

The Issue

In response to the economic impact of the Covid19 pandemic, President Trump issued a presidential proclamation that suspended the entry of foreign nationals in the H-1B, L-1, H-2B, J-1 categories, and related categories for dependents, with some exceptions. The non-immigrant ban took effect on June 24, 2020 and will be in place through December 31, 2020. 

While this ban significantly impacts employment and business based non-immigrant categories available to foreign nationals outside of the United States, this ban does not impact the E-2 Treaty Investor Visa- a visa that is largely unknown to many foreign workers around the world. 

What is the E-2 Treaty Investor Visa? 

The E-2 Treaty Investor Visa is for citizens of countries with which the United States maintains treaties of commerce and navigation. This visa permits applicants to develop and direct the operations of an enterprise in which they have invested a substantial amount of capital.

Unlike the highly publicized EB-5 immigrant program in which investors are asked to invest from $900,000 to $1.8 million dollars in a US enterprise, the E-2 visa requires a “substantial investment”- an undefined amount of money that is open to wide interpretation. 

How much of an investment is required for my business?

The amount of the investment required for your US enterprise depends upon the size and type of your business. For example, a smaller consulting business that does not require a significant amount of equipment or a large amount of inventory may only require a $40,000 investment. However, a larger business, such as a car dealership, may require a large amount of investment due to the high costs associated with the cars required for sale and other start-up costs. 

What are the other requirements?

In addition to being a foreign national from an E-2 country and investing a substantial amount into a US enterprise, the following must be established: 

  • If an individual investor, the investor must own at least 50% of the US enterprise
  • If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
  • The investment must be committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
  • The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
  • You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.  Ordinary skilled and unskilled workers do not qualify.

How long can I stay in the United States?

The amount of time permitted on your E-2 visa depends on the applicant’s country of origin. However, this time varies between three months to five years. While the visa is temporary, the visa can be extended indefinitely (subject to your company’s continued success in the United States). 

Conclusion

The E-2 Investor visa may be a perfect option for you if you are looking to expand your business to the US or to invest in a US enterprise. For more information regarding the E-2 visa, please contact me at [email protected]

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