Foreign nationals seeking to come to the U.S. to invest in a business enterprise may obtain an E-2 visa.
The applicant must be a national of a country with a treaty of friendship, commerce or navigation with the U.S. and must demonstrate that he/she will develop and direct the investment enterprise.
The E-2 investor may be admitted for an initial period of two years and may be granted extension in increments of not more than two years. The spouse and minor children may join as dependents. The spouse but not the children may obtain employment authorization. The children may attend school.
There is no fixed dollar amount of investment required but the applicant must be able to show that it is substantial. It must not be an investment solely for the purpose of earning a living for the investor and his/her family.
Investments as defined by the regulations must pertain to funds or assets placed at the disposal of the business with the objective of making a profit and subject to a risk of loss incident to the business operations.
The E-2 applicant must be able to show that he/she possesses and controls the capital funds invested or being invested. The source of the funds need not be outside the U.S. as long as these were received through legitimate means. It can be received through a legacy, gift, savings, or inheritance from a U.S. source. However, while the capital funds can be inherited, an already operating business could not be inherited to be a considered a valid investment under E-2.
The substantial capital funds required must meet the proportionality test. This means that the amount of capital is substantial in relationship to the cost of purchasing or creating the business. It must be of such amount to support the likelihood that the investor will successfully develop and direct the enterprise.
The funds must be irrevocably committed to the business or enterprise and subject to the risks of conducting business in the U.S. whether it would result in profit or loss, either partial or total. The debt cannot be secured by the assets of the business itself but may be secured by the personal assets of the alien investor to be considered as qualifying investments.
Since the capital funds required are substantial, there may be issues on how to meet sufficient investment requirements to qualify for an E-2 treaty investor visa.
The original owner of the funds may be a U.S. citizen or green card holder and may give or lend money to a person or corporation holding treaty nationality so that this person or entity can qualify as an E2 investor. The E-2 investor then may also be eligible to bring in E-2 employees.
Two individuals wanting to invest in the same business but individually do not have enough funds to meet the substantiality requirement may also pool together their funds in that same business with one being the principal investor while the other just a donor or lender of the funds. Once qualified for E-2 visa, the principal E-2 investor may bring in the other as an E-2 employee.
Several investors may also pool together their funds and invest in a holding corporation for the purpose of investing and conducting business in the U.S. The holding corporation which should have treaty nationality shall act as the principal investor to be eligible for E-2 classification. Once qualified as E-2 investor, it can then petition some or all of the shareholders as E-2 employees.