IS THE E-2 VISA RIGHT YOU?
A STEP-BY-STEP GUIDE TO OBTAINING AN E- 2 VISA VIA CONSULAR PROCESSING.
It should be noted right away that there are some very large countries who do not have E- 2 treaties with the U.S. and, thus, are not eligible for this visa. The largest of these treaty-less nations are: China, India, Brazil and Russia. You can read the entire list of eligible treaty countries here.
In the world of investor visas, the EB-5 gets all the headlines. Understandably investments in brand name hotels and sports arenas are far more exciting than those in a coffee shop or fast-food franchise. However, after some analysis it becomes apparent that for many investors, the E-2 can be a cheaper, quicker option.
The purpose of this article is to help you determine if the E-2 is right for you, and give you a step-by-step guide to obtaining one via consular processing.
What Is the E-2 Visa?
The E-2 is essentially a visa for entrepreneurs who want to come the U.S. to open and operate a business. The regulations refer to it as a “Treaty Investor Visa” and this simply means that there must be a treaty between your country and U.S. that allows you to apply for the E-2. As mentioned above, China, India, Russia and Brazil are a few of the larger countries not eligible.
Additionally, the E-2 does not lead directly to permanent residency, however, you can extend the E-2 visa indefinitely, as there is no cap on duration. While some investors may see this as a limitation, there are many investors who do not have the immediate objective of permanent residency. Even so, there are still permanent residency options for those investors who change their minds and wish to seek a green card on E-2 status.
Are You Eligible?
The first eligibility criteria is whether you are a citizen of one of the countries on this list. If your country of citizenship is not on this list then you will not be able to apply for the visa. Once treaty eligibility is established, the investor must satisfy several more criteria. An analysis of these criteria is below:
- How Much Money Do I Have To Spend?
The regulations are completely unclear on an exact investment amount for the E- 2 visa. However, there are many clues to help you determine a “safe” amount. The first clue being that the investment must be substantial. To determine whether an investment is substantial the consular officer will perform a “proportionality test”. The test is an evaluation of the following two figures: Amount of Investment vs. Cost of Buying or Creating an Established Business. Here is an example to illustrate:
- Giorgio from Italy is applying for an E-2 visa to open a brand new coffee shop in Hollywood. He has invested $150,000.
- Scenario 1: With his application he submits evidence that an existing coffee shop in the neighborhood sold for $150,000 last year. In this case, Giorgio has proven that his investment is 100% proportional to the cost of buying an existing coffee shop. ($150,000 investment vs. $150,000 cost of established business).
- Scenario 2: This time Giorgio submits his application showing that he has invested $150,000 but he does not have evidence of another coffee shop selling at that price. Instead he gets a letter from the Hollywood Chamber of Commerce showing that the average cost for starting a coffee shop in Hollywood is $125,000. He also provides a letter from a local coffee shop explaining that their startup costs were only $100,000. Here Giorgio has also likely proven that his investment is proportional. ($150,000 investment vs. $100-125,000 cost to start a coffee shop).
An important note here is that the more expensive a business the less proportional the investment has to be. For example, a consulting firm can become operational and successful with an upfront investment as low as $60,000 (arguably even less), however a large manufacturing facility requires a much larger investment to operate due to the cost of lease, equipment, employees, etc. Therefore, if you are starting a consulting firm it is highly advisable that you commit the entire amount prior to application. However, if you are opening a business that typically requires substantial infrastructure you may satisfy the officer with a smaller fraction of the investment amount. Many consulates use the following scales:
- For businesses requiring an investment of less than $500,000 it is recommended that 85% to 100% of the funds are invested prior to filing;
- For businesses requiring between $500,000 to $3,000,000, 50% investment is sufficient.
- For businesses greater than $3,000,000, 30% is considered substantial.
Furthermore, the amount of your investment must be sufficient to show your commitment to the success of the business.In other words, the investment has to hurt a little bit. If the consular officer believes that you are worth $100 million, it is unlikely that a $60,000 investment will convince the officer of your commitment. On the other hand, for the average investor worth $300,000 a sum of
$100,000 will likely be considered large enough to prove commitment to the success of the business.
- When Does the Money Have to be Invested?
Your business must be very close to being operational at the time of filing your E- 2 petition. This means that the consular officer would like to see that you have irrevocably committed the funds and assets to the enterprise. A business that merely exists on paper, with speculative or idle investment does not qualify. You are not required to spend the entirety of your investment, but there should be documentation of how you have spent a large portion of the funds and how you intend to spend the rest. We have outlined general rules for normal expenditures below:
- Rent: You CANNOT count the entire value of the lease, but only count the duration that you have paid for prior to filing. If you have not yet taken possession of the space then you can count one month of rent.
- New Goods or Equipment: You CAN count the full value of all equipment that is purchased for the business.
- Existing Goods or Equipment: You CAN count the total amount of previously purchased equipment so long as you can prove that the equipment will be used for business purposes.
- Other Expenses: Expenses for marketing, branding, web design, etc. CAN be used in their full values towards the E-2investment. Proper documentation must be submitted to prove these expenses.
It should be noted here that many E-2 investors wish to purchase existing businesses but also wish to protect themselves from massive loss in the event that the application is denied. In these cases the regulations allow for the investor to enter an escrow agreement where release of the purchase funds are contingent on approval of the E-2 petition.
- How Do I Prove my Investment?
Though not as stringent as the EB-5, the E-2 also requires the investor to prove the source of the investment funds. There are two parts to proving your source of funds to the consular officer:
- First, you must prove that you had possession and control of the invested funds. This requirement can be satisfied by providing documentation showing how you received the money. The regulations allow money derived from income, gift or inheritance. Funds derived from a loan are only eligible if the investor is personally liable for the loan.
- Second, you must prove that your investment came from lawful sources. Typically this requirement is satisfied by the documentation provided for item 1 above. Sometimes multiple layers of documentation are required. For example, if you earned the funds through the sale of real estate you may have to show proof of the sale and proof of how you earned the funds to purchase the real estate in the first place.
4. Which Documents Do I Need to Submit?
Different consulates may have slightly differing criteria but here is a list of the most commonly requested documents:
- Lease Agreement(s)
- Purchase Agreement if purchasing an existing business
- Escrow Agreement for business or equipment purchases, if applicable
- Vendor Contracts
- Bank Statements
- Receipts for all qualifying purchases (including purchases for equipment brought from abroad)
- Invoices from vendors
- Purchase orders
Source of Funds
- Pay stubs from previous employer
- If self-employed, tax returns and wage statements
- If receiving dividends, board resolution and proof of wire transfer
- Letter from previous employer(s) confirming your position and salary
Gifts & Inheritance
- Gift letter from giftor explaining terms of the gift
- Court disposition or other documents if showing inheritance
- Corresponding bank statements and wire transfer information showing deposit of gift/inheritance
Real Estate Income
- Copy of Sale Contract
- Corresponding bank statements and wire transfer info showing deposit of proceeds
- Copy of Purchase Contract for property
- Explanation of how funds were derived to purchase the property in the first place
- Business Plan including a 5-year projection and competitive analysis
- Contracts for prospective work
- Investor CV
- Passport, visas, I-94
- The E-2 also allows owners and directors bring essential employees from their home country to help with the business.
- The E-2 visa does not have strict job requirements. Unlike the EB-5, there is no strict job creation requirements for the E-2; however, the foreign national must demonstrate that the business can generate significantly more income than required to provide a living for the foreign national, which means creating jobs and having a positive impact on the US economy;
- The E-2 visa allows spouses and unmarried children under 21 to enter on the visa. They are permitted to work and attend school without hindrances.
- No matter the enterprise, you must be the majority owner of the business (at least 50%).
Final Thoughts and Considerations:
Consular Processing vs. Change of Status:
While this article is focused on E-2 visas through consular processing, it is also possible for some applicants to apply for E-2 status with the USCIS while remaining in the country. However, applications of this sort are less common since every applicant will eventually be required to reapply at his or her consulate if they leave the U.S. There are, however, limited circumstances that warrant adjustment of status. Adjudication at a consulate is at the discretion of the consular officer and there is no right to appeal in the event of a denial. Conversely, USCIS decisions are subject to strict interpretation of the regulations and an appeal may be filed in the event of denial. Therefore, in cases where the investment is less than than $50,000 or there is a time deadline, then a change of status while remaining in the U.S. may be the best option. Of course, there are many other variables that must be discussed with your attorney prior to making a final decision.
Submission and Timelines:
The timeline for most E-2 consular processing cases is as follows:
- Document gathering and business plan creation by client in consult with attorney – 2-4 weeks;
- Case preparation by attorney – variable but anywhere from 1-3 weeks depending on attorney;
- Submission to consulate and consulate appointment notice: Consular processing times vary dramatically from post to post and your attorney should inquire at the outset to give you an idea of the wait times. It is uncommon to have a wait of more than 90 days at any post.
- Consular interview: The decision for your application is generally made during the interview. After approval you will receive your passport in the mail with your new E-2 visa.
- Entry: Upon entry, the border officer will grant your stay for an initial period of 2-5 years depending on the reciprocity agreement the US has with your home country. 6. Renewal: The E-2 visa can be renewed indefinitely as long as the business continues to be operational. The process of applying for a renewal is similar to the initial process.
While the E-2 requirements may seem intimidating, it is our experience that the process can go very smoothly with some advance planning and organization. A detailed plan at the outset goes a long way to keep everything manageable and on track.