E-2 (TREATY INVESTOR) VISA PROCESS AND PROCEDURE
The E‑2 (Treaty Investor) visa, made possible by a treaty between various countries and the United States, allows one to live in the United States for many years, but not permanently. The most essential criteria are that there must be:
- a treaty of commerce and navigation between the country of the foreign national's citizenship and the United States;
- majority ownership in an investment by a national or citizen of the treaty country; and,
- citizenship in the treaty country by the person seeking admission under treaty investor status.
There are also the following additional requirements:
- There must be an investment in the U.S. in which the investor has made a commitment of funds that represent an actual, active investment (i.e., an operating enterprise producing some service or commodity).
- The investment must be substantial. While this term is not defined in absolute dollar amounts, it must show that the investor's own resources are at risk, and that the investment represents a significant part of the value of the enterprise, sufficient to capitalize an enterprise of the type contemplated. If one is going to start a bank, millions of dollars would be needed; if one is going to buy an ice cream parlor, $100,000 or less might suffice.
- The investment cannot be marginal in nature (one which will support only the investor and his/her family), but should create job opportunities for U.S. workers. There is no written requirement that an investment create employment for U.S. workers. Nonetheless, the business enterprise should require employees beyond the investor in order to operate and should be conducted on a scale which will assure this employment. Also, reliable income projections should be made that will show sufficient funds generated beyond a living wage for the investor, so that money would be available to pay salaries to U.S. workers.
- The person for whom the treaty investor status is sought must fill a key role within the company (i.e., one of the persons who has developed and directed the investment), and have a controlling interest in the company.
Generally, much of the supporting documentation needed for the E‑2 nonimmigrant status is included in a letter signed by the company. This letter is drafted by our office according to the specifics of the individual case, and covers both the E‑2 essentials as well as the discretionary information which strengthens the application. Information on the size and amount of the investment, the prospects for the employment of U.S. workers, the duties to be performed by the individual for whom the visa is sought, and the qualifications of that individual to fulfill those duties are usually included in this letter.
Additional documentation needed for the E‑2 application usually covers the following points:
- Majority ownership of the company seeking treaty status. This proof usually would be certification of a corporate resolution submitted to show the identity and percentage of ownership of the corporation by the shareholders. A statement from the company's accounting firm may also be submitted showing ownership.
- The type of business in which the company is engaged. The company's Articles of Incorporation would show this, along with brochures, promotional materials, or copies of any licenses required to conduct the business.
- The amount of the investment, including the source of the money. This can be evidenced by loan agreements or bank statements showing transfers of funds from foreign banks to U.S. banks. Funds must be placed into a corporate account in order to be attributable to the U.S. investment.
- The type of financial transactions that make up the investment. This documentation includes receipts for purchases of equipment, real property, start‑up inventory, costs incurred in establishing the business and capital improvements, and statements demonstrating the valuation of goods or equipment transferred to the U.S.
- Prospects for the investment. Copies of sales contracts already signed and/or letters showing on‑going negotiations should be submitted. In the absence of this hard evidence, a market research study by a professional consulting firm may be convincing on the issue of the company's viability.
- Duties to be filled by the foreign national. The employer's affirmations in the cover letter are generally sufficient. However, corporate personnel materials such as personnel charts or job descriptions which may be available to substantiate the affirmations may be submitted.
- The foreign national's qualifications to fulfill the duties. Should the employer's affirmations in the cover letter cite specific experience or educational background, reference letters (usually from prior employment) should be made available for submission.
- A legal brief tying the documents to the requirements set by statute and State Department regulations.
While the general outline for an E‑2 application remains constant, there are always variations in the specifics. We should discuss the E‑2 option in more detail if it appears to be a reasonable choice for you. The E‑2 visa does allow a foreign national to enter the U.S. for up to a year at a time, to "work" at his/her owned investments, and can be renewed annually for an indefinite period of time.
If you would like further information about specific case scenarios or situations, please call our office or email us at firstname.lastname@example.org to speak to one of experienced immigration attorneys.
This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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