E-2 Treaty Investor Visa: Great (and less expensive) Alternative to EB-5

by Sherrod Seward, Partner, Queen City Immigration Law, (704) 741-9002

The E-2 Treaty Investor visa is the most widely utilized program for entrepreneurs to enter the United States to start or purchase a business. The E-2 Treaty Investor visa is more popular than the EB-5 foreign direct investment immigrant category because the former is not subject to any numerical caps and typically involves a much smaller investment than the EB-5, which requires at least a $500,000 investment. The one major drawback is that the E-2 is a non-immigrant visa as opposed to the the immigrant nature of the EB-5 category, which grants permanent residency in the United States. However, the E-2 can be renewed indefinitely for up to two years each time as long as the investment business remains operational and the E-2 investor maintains an intention to depart the United States when his or her status expires or is terminated.

The E-2 investment must be "hands on," meaning that the petitioner must be capable of actually managing the operations of the investment business and not just be a passive investor. In addition, the petitioner has to be a least in the process of investing a "substantial amount" in a real business, new or existing, at the time of the E-2 application. The minimum required investment depends on the nature of the business and can range from $45,000 - $400,000. A substantial investment amount must be sufficient to ensure a commitment to a successful operation and may be less then the total cost of purchasing an existing business or establishing a new one. It is also necessary that the investment be bona fide, meaning that the investor places his or her capital at risk in the commercial sense with the objective of generating a profit, i.e. if the business is a failure, the investment is lost.

Employees of the treaty investor as well as spouses and children under 21 years old of both employees and the investor can apply for and obtain the same E-2 classification. For employees, there is a requirement that they be of the same nationality as the investor and have executive authority or special skills related to the business. The USCIS uses a variety of factors to determine eligibility for E-2 employees, assistance of a skilled immigration attorney is recommended to put the best case forward.

When considering an E-2 Treaty Investor visa, remember the following points:

  1. The E-2 Visa is not a pathway to permanent residency and citizenship, however, it is renewable for the length of the business, in increments of up to two years.

  2. The E-2 visa is only applicable to the business activity approved by USCIS.

  3. The E-2 petitioner may experience interviews and background checks with every renewal.

  4. Only available to non-immigrants from countries that maintain applicable treaties with the United States. The full list of countries whose nationals are eligible for the E-2 classification can be found on the U.S. Department of States's List of Treaty Countries.

  5. E-2 visa holders may only work for themselves or the E-2 investor.

  6. Children of E-2 investors and employees lose their E-2 status when they turn 21 years of age. At that time they need to find another status.

  7. E-2 visa holders do not have to live in the United States any particular amount of time.

To Get a helpful immigration consultation or case evaluation with a licensed U.S. Immigration Attorney from Queen City Immigration Law please call (704) 741-9002.