E-2 VISAS: BASIC REQUIREMENTS
Here are the essential criteria for E-2 via eligibility:
- The applicant must be a citizen of a treaty country;
- The investment must be substantial based on the market value of the existing business or the market assessment of the capital needed to establish and launch the business;
- The enterprise must be real and operating;
- The investor must have control of the funds and the investment must be “at-risk”;
- The investor must have a controlling interest of at least 50% or more in the investment and intends to develop and direct the enterprise; and
- The enterprise must be more than marginal.
What exactly do each of these requirements mean? Each item is broken down below. We’ve also included more tips and facts about E-2 visas at the bottom of the page.
1. Citizen of a treaty country
An E-2 applicant must be a citizen of a country that has a qualifying treaty with the United States. The Department of State maintains a list of countries with visa treaties on their website. Some major countries, including Brazil, Russia, India, and mainland China, do not have such treaties.
2. The investment must be “substantial”.
One of the biggest hurdles in obtaining an E-2 visa is whether the applicant is making a ‘‘substantial’’ investment. Substantiality can be met by demonstrating that:
- the amount invested is substantial in proportion to the total value of the enterprise for similarly established enterprises; or
- the amount invested is the normal amount necessary to establish a viable enterprise for new business.
If the actual ‘‘at risk’’ investment is more than half the value of the enterprise, it should meet the substantiality test. For example, an investment of $80,000 in a motel valued at $440,000, where the remainder is secured by a mortgage, is not substantial. However, if the investment is $150,000 in a $250,000 business, it will meet the substantiality test. If the investment is $1 million, where the business costs $10 million, including debt, the investment may be substantial even though the amount invested is only ten percent of the business.
Service industry companies generally require less money to start than manufacturing companies. Therefore, a substantial investment in a tech startup may be met if the amount invested is necessary to establish a viable enterprise. For example, a Silicon Valley startup might only need $100,000 to open an office, buy necessary office equipment, and have enough working capital to hire a few software engineers before raising a large seed round.
3. The enterprise must be real & operating
Proof of a real and operating business enterprise may include:
- licenses and permits
- incorporation documents
- receipts and invoices of customers and suppliers
- leases, deeds and closing statements
- bank statements and phone bills
- letters from customers or suppliers or lenders doing business with the company
- business promotional literature
- product inventory brochures.
In addition, the number of employees or independent contractors is critical to the approval of an E-2 visa for a startup with a small amount of invested capital. Evidence of employment contracts, third party service contracts, and a business plan that demonstrates employment growth will be persuasive.
4. The investor must have control of the funds and the investment must be “at-risk.”
The money invested must be “at risk” and subject to loss! Collateral for a loan must be from personal assets or with a personal guarantee on a loan. Mortgage debt or a commercially secured loan (e.g., a loan secured by the business’s assets) is not sufficient. The E-2 investor must also demonstrate that the money is ‘‘at risk.’’
For example, an international entrepreneur may not have personal funds for his initial $100,000 investment, but has some family members willing to provide the capital. If the E-2 investor borrows the money from a family member and uses that as the investment capital, it would qualify as being ‘‘at risk,’’ provided they sign a personal guarantee. An irrevocable gift from the family member also qualifies. However, the U.S. business cannot be a passive investment like stocks or undeveloped land.
5. The investor must have a controlling interest and be able to develop and direct the enterprise.
The investor must have control over the U.S. enterprise. Having 50% control is sufficient, even where the 50% ownership is in a joint venture.
With many startups, dilution occurs as more money is raised. If an E-2 investor’s control drops below 50%, the E-2 investor’s control dips below the minimum, and the E-2 is no longer valid. However, the E-2 investor’s U.S. citizen co-founder could provide a voting proxy or voting trust agreement to keep the E-2 investor’s control at or above 50%.
6. The enterprise must be more than marginal.
Marginality means that the investment cannot exist solely to allow the E-2 investor to make a living. In essence, the investment must create jobs for Americans. Those jobs can be direct (employees, either full or part-time), indirect (contractors), or induced (third party employment). For example, an E-2 entrepreneur may contract with a third party to provide information technology services, where an annual payment might exceed $100,000. Arguably, that third party has employees doing the work.
MORE TIPS & FACTS ABOUT E-2 VISAS
SPOUSES & CHILDREN OF E-2 VISA HOLDERS
The applicant’s spouse and children under 21 years old may apply for derivative E-2 visas. They may attend school, but children cannot work. An E-2 spouse is eligible for independent work authorization.
This gives rise to some creativity as well. For example, the United States does not have a E visa treaty with India. But if the Indian entrepreneur is married to a treaty citizen (e.g., the United Kingdom), the spouse can apply for the E-2 visa, and the Indian entrepreneur can get independent work authorization and be an executive of a startup.
ADDITIONAL E-2 VISAS FOR SPECIALIZED EMPLOYEES
A qualifying E-2 company can also apply for E-2 visas for specialized essential employees, executives, or managers who are nationals of a treaty country and whose services are required in the United States.
E-2 INVESTMENTS ARE NOT FORMULAIC
As demonstrated above, there is no minimum investment or number of employees, and no required size or type of business. While some requirements can be very restrictive (the applicant must be a citizen of a treaty country and the company must be at least fifty percent owned by nationals of the treaty country), if you have an idea and the entrepreneurial drive to execute, along with access to capital and are a national of an E-2 treaty country, you can potentially build an E-2 case. For more general discussion of this topic, we recommend this article by Matthew Roy: E Visas As A Way To Gain Long-term, Non-immigrant Status In The United States.
A STRONG E-2 CASE TELLS A COMPELLING STORY
The business plan must convey the entrepreneurial spirit of the investor and the positive local, regional, or national economic impact to demonstrate that the business is more than marginal. Presentation is important! The business plan (here is a good recording of a discussion on business plans) and cover letter must be precise and organized to convince the adjudicating officer of the strength and potential success of the business idea.
E-2s can be a valuable tool for international entrepreneurs if there is a treaty with the country of citizenship, whether connecting with an existing company of treaty nationality or by investing in a new company directly by the entrepreneur or by his or her family. If an international entrepreneur has U.S. citizen partners, it is sometimes possible to split the business into two companies to support an E-2 visa application.
We are available to help with your E-2 visa questions. We can offer full-length individual consultations as well as presentations & workshops to your group. Contact us for more information.