Visas for Investors and Entrepreneurs


Visas for investors and entrepreneurs

Several options are available to obtain US visas for investors and entrepreneurs. Over many years, the United States entered into commercial treaties with many countries (treaty countries).

About Visas for Investors and Entrepreneurs

E-1 visa for Treaty Traders is granted to people who conduct trade between the US and the country of the foreigner’s nationality. Trade must involve qualifying activity and be substantial.

E-2 visa for Treaty Investors allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such person (or of a qualifying organization) may also be eligible for this classification. Some dependent family members of E-2 investors will be able to get E-2 visa as dependents and apply for a work permit.

Spouses of the Treaty Traders or Investors can get Employment Authorization Documents and work in the US.

E-3 visa is for Australians, and it’s not really related to E-1 and E-2. E-3 is more similar to H-1B work visa. To obtain E-3 visa, the petitioner is required to file a Labor Condition Application.

May I change my status to E-2 while in the US?

Yes. If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-2 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

I’m outside the United States. How do I get E-2 visa?

A request for E-2 visa, or other visas for investors, may not be made on Form I-129 if the person being filed for is physically outside the United States.  To apply for E-1 or E-2 visa abroad, you would have to go through the U.S. Department of State. After a Consulate issues you a visa, then you could apply to a DHS immigration officer at a U.S. port of entry for admission as an E-1 or E-2 nonimmigrant. Usually, Consulates issue E visas for five years, and sometimes for two.

How to qualify for a status of a Treaty Investor?

To qualify for E-2 visas for investors, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the US to develop and manage the business. Applicant manage the enterprise having at least 50% of the ownership and control of the business
  • Show that the commercial enterprise is real and active – and is not marginal

Which countries qualify for E2?

Most Western countries are participants of the qualifying treaties with the US, but there are some curious exceptions such as Portugal or New Zealand. India and China don’t have treating with the US either. To get E1 or E2 visa, a Trader or an Investor must possess the nationality of the treaty country. Place of incorporation of the business doesn’t matter. What matters is the nationality of the owners of the business.

What is an investment for purposes of E2 visas for investors?

An investment means that the treaty investor is placing capital at risk in the commercial sense with the goal of generating a profit. To be at risk means that the capital must be subject to partial or total loss if the investment fails. The treaty investor must prove that the funds were obtained legally, and not from any criminal activity.

What investment is considered substantial?

There is no set dollar amount to determine what investment is considered substantial: it depends on your business. In some cases, $3 million is not enough, and in some – $50,000 is good. For purposes of getting visas for investors, a substantial amount of capital is:

  • Substantial in relationship to the total cost of either buying an existing business or establishing a new one
  • Sufficient to ensure that the treaty investor is financially committed to the successful operation of the business
  • Big enough that it’s likely that the treaty investor will successfully develop and manage the business.  The lower the cost of the business, the higher must be the investment to be considered substantial.

How to prove that the business is bona fide?

A bona fide enterprise means that the business is real, active, and operating in a way that it produces services or goods for profit. Bona fide business must be properly organized under the legal requirements of its jurisdiction.

What business is considered marginal?

A marginal enterprise is a business that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, even if a new business lacks the current capacity to generate such income, it might not be considered marginal. But in such cases, the business should have the capacity to generate such income within five years from the date of obtaining the E-2 classification by the investor.

How to qualify for an E-2 status as an employee of a Treaty Investor?

To qualify for E-2 classification as an employee, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of a treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in executive or supervisory duties or have special qualifications

The principal alien-employer may be either an individual or a business or organization. If it’s a business, then it must be at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must maintain E2 treaty investor status.  If the owners are not in the United States, they must be classifiable as E2 treaty investors if they were to seek admission to the US.

What are the executive or supervisory duties and special qualifications?

Executive or supervisory duties primarily provide the employee ultimate control and responsibility for the organization’s overall operation or a major component of it.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business. Several qualities or circumstances could meet this requirement, depending on the facts:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.

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How long can I stay in the US under E2?

Qualified treaty investors and employees are allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit of the number of extensions an E-2 nonimmigrant may be granted.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It’s generally not necessary to file a new Form I-129 with USCIS in this situation.

What are the terms of E2 status?

A treaty investor or employee may only work in the activity for which he or she was approved when the visa was granted.  An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed

USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is a fundamental change in the employer’s basic characteristics, for example, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization. The treaty investor or enterprise must notify USCIS by filing a new Form I-129, and may, at the same time, request an extension of stay for the treaty investor or affected employee. Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification. If changes are non-substantive, you don’t have to file a new Form I-129.

A strike or other labor dispute involving a stop of work at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status.

Can I travel with E2 status?

The E-2 treaty investor or employee may travel abroad and is usually granted an automatic two-year period of readmission when returning to the United States. For the new readmission period to apply to their family members, they must be accompanying the E-2 treaty investor or employee at the time he or she seeks readmission to the United States. Family members must carefully note the period of stay they have been granted in E-2 status and apply for an extension of stay before their own validity expires in order to remain lawfully in the United States.

I’m an E-2 Treaty Investor or an employee. What about my family?

Treaty investors and employees may be joined by spouses and unmarried children who are younger than 21. Their nationalities need not be the same as the treaty investor or employee. These family members may apply for E-2 visas as dependents and generally will be granted the same period of stay as the employee. If the family members are already in the United States and want to change status to an E-2 dependent classification, they may apply by filing Form I-539. Spouses of E-2 workers may apply for work authorization by filing Form I-765. If approved, there is no specific restriction as to where the E-2 spouse may work.

As an E2 investor, do I have to have nonimmigrant intent?

Yes, sort of. All E-2 nonimmigrants must maintain an intention to depart the United States when their status expires or is terminated.

Do visas for investors lead to a green card?

E visas are hybrid. Generally speaking, E visa holder may apply for a green card while in E status, and renewal of E should not be denied because of pending green card application. On the other hand, a person with E visa is supposed to leave the US at the end of E period, so even if a green card petition is approved, the E holder should take the consular processing route in his home country as opposed to the adjustment of status in the US.

Florida immigration attorney Oleg Otten helps investors and entrepreneurs get appropriate visas, green cards, and then citizenship, to build their American Dream.

Miami immigration attorney Oleg Otten