The E-2 Visa: An Opportunity For Some Foreign Investors

The US government maintains certain international treaties with various countries around the world. The E-2 non-immigrant visa allows citizens of those beneficiary countries, with which there are trade and navigation treaties, to be admitted to the United States in order to invest a substantial amount of capital in an American company. In addition, the E-2 visa also allows your relatives and some employees to be eligible to live and work temporarily in the United States.

Currently citizens of the following countries can be benefited with the E-2 visa: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan ), Colombia, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Granada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, South Korea, Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Montenegro, Morocco, the Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, the Philippines, Poland, Romania, Serbia, Senegal, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine,United Kingdom and Yugoslavia.

How do you get E-2 nonimmigrant status when the foreign investor is inside the US?

If the foreign investor is within the United States legally (without his period of authorized stay has expired), he may request a change of status to classification E-2. The change of status is requested from the US Citizenship and Immigration Service (USCIS), using form I-129. Also, if the investor’s employee is within the United States legally, the employer will have to request the change of status of the employee through form I-129.

> How is E-2 nonimmigrant status obtained when the foreign investor is outside the US?

If the foreign investor is outside the US, he will have to obtain an E-2 nonimmigrant visa in order to enter the US and thus obtain E-2 nonimmigrant status. The E-2 nonimmigrant visa will have to be applied for through a consular process (at the US Embassy or Consulate abroad). The US Department of State (DOS) has a mission to administer the E-2 visa process at Consulates and Embassies. DOS requires the foreign investor (and / or employee) to apply for their E-2 visa using form DS-156E. Once the investor (and / or employee) is approved for the E-2 visa, he can travel to the US to apply to be admitted under E-2 nonimmigrant status.

General requirements for a foreign investor to obtain the E-2 visa

To qualify for the E-2 visa, the foreign investor will have to:

• Have the nationality or citizenship of a country that has a navigation and trade treaty with the US
• Having made, or in the process of making, a substantial capital investment in an American company.
• By definition, an investment is when the investor’s capital and assets are put at risk in order to generate profits. A business is not listed as an investment if the capital is not at full risk of loss if, for example, the business is not successful. Before obtaining the E-2 visa, the US government requires the investor to demonstrate the origin of the capital that he uses for the investment, and that it does not come from illegal activities.
• Substantial means an amount of capital that practically guarantees the viability of the business or project. For example, the total cost of buying an already established company or creating a company from scratch is generally substantial. Generally, what is required is that the investment in the company is not marginal. In other words, that the investment has the immediate and mediate capacity to generate enough profits so that the investor and his family do not have to worry about money.
• The American company has to be a real company and not a shell company. It will have to be a company incorporated under the laws of the jurisdiction, that gives goods or services in order to obtain profits.
• Have the intention of traveling to the USA to develop and direct the company in which you are investing. The investor will have to demonstrate that he owns more than 50% of the shares of the American company or that he has operational control through an executive position.

General requirements for an employee of a foreign investor to obtain the E-2 visa

To qualify for the E-2 visa, the employee of the foreign investor will have to:

• Be of the same nationality or citizenship as the employer
• Demonstrate that the employee-employer relationship is true
• Hold an executive or supervisory position (positions of high command and responsibility). If the employee is not an executive or supervisor, it could also be accepted if the employee demonstrates some special quality for the position (for example experience and effective service for the operation of company operations). Knowing another language could be a positive factor among others.

If the employee is not a natural person, it could also be a company or organization that is owned (more than 50%) by people who have the nationality or citizenship of a country that has a navigation and trade agreement with the United States. If the owners are in the US, they will have to have E-2 status. If the owners are outside the US, they will have to be classifiable for an E-2 non-immigrant visa.

Period of stay in the USA

Initially, the maximum period of stay for foreign investors and their employees is two years. One of the advantages of E-2 visas is that the extensions of status can be approved unlimitedly, in increments of two years each, as long as the beneficiaries demonstrate the desire to return to their countries once their status expires or expires. finish.

Conditions for maintaining E-2 status

Foreign investors and their employees may only work in the activities previously established to obtain the E-2 non-immigrant visa. If, for example, there is a substantial change in working conditions, USCIS will have to approve the change and be notified by a new I-129 application. If the changes in working conditions are minor, there will be no need to file a new I-129 application.

Relatives of foreign investors holding E-2 visas

Foreign investors and their employees have the advantage of being accompanied by their immediate relatives (wives and unmarried children under the age of 21). The nationality of the family members does not have to be that of a country that has an international treaty with the United States. Family members will be able to obtain their respective E-2 visas as dependents and, in general, their period of stay in the US will be the same as that given to the foreign investor and / or employee.

If family members are within the US legally they may request a change of status to E-2 classification. Change of status is requested from USCIS using form I-539, which includes the entire family. In addition, spouses may also apply for a work permit from USCIS using form I-765. The spouses have the advantage that they can work in any type of work, without any restriction or condition.

Travel outside the US

After the foreign investor or their employees or family members have entered the US on E-2 nonimmigrant visas, they will be able to leave the country and reenter without any problem. In general, E-2 nonimmigrant status will automatically extend, for two years, each time you re-enter the US.

If the foreign investor or their employees or family members obtained E-2 nonimmigrant status through a change of status (without having left the US), they will need to obtain an E-2 visa before they can re-enter the US and be readmitted under E-2 nonimmigrant status. As mentioned above, E-2 nonimmigrant visas will have to be applied for through a consular process.