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E2 VISAs

The following information is provided regarding U.S. regulations for foreign investors. Status as either a nonimmigrant (E-1/E-2) or lawful permanent residency (EB-5 green card) can be obtained based on direct investment of funds in the U.S. This letter provides a general outline of the nonimmigrant visa procedure as well as the permanent residency application based on investment.


Nonimmigrant Visas for Investors

An E-1 (trader) or E-2 (investor) nonimmigrant visa is especially useful for business owners, managers and employees who need to remain in the U.S. for extended periods of time in order to oversee or work in an enterprise engaged in trade between the U.S. and a foreign state or to manage a major investment in the U.S. 'E' visas are generally issued for five years; extensions may be granted as long as eligibility continues.


Eligibility Requirements of the Investor Seeking a Nonimmigrant Visa

To qualify for an E-2 visa, the individual must meet the following requirements:

  • Be a national of a foreign state with which the U.S. has a treaty
  • Be coming to the U.S. solely to develop and direct an enterprise
  • Be in the process of investing or already have invested a substantial amount of capital

Eligible Nationals

The E-2 nonimmigrant category is available only if a treaty of commerce and navigation or a "bilateral investment treaty" providing for nonimmigrant entry is in existence between the United States and the foreign state. Please refer to the attachment to see the countries which currently have treaties.

A passport issued by one of the listed countries is generally sufficient to demonstrate nationality for the principal beneficiary. Eligible family members would include a spouse and/or children under 21 (there is no nationality requirement for the spouse or child). It should also be noted that the individual's employees (e.g., executives, managers, or employees with special skills essential to the company) may also accompany him or her.

Also, the general rule is that the principal E-1 treaty alien and employee seeking entry as E-2 employee must have the same nationality as the treaty enterprise. A determination as to nationality of certain foreign corporations may be complex. The nationality of the company engaged in trade or investment is the nationality of those persons who own at least 50 percent of the stock of the corporation. Under this definition, INS does recognize 50/50 joint-venture companies as qualifying for E-2 status.

Treaty Investor (E-2 visa)

A treaty investor is in individual who is temporarily seeking entry to the U.S. solely to develop and direct the operations of an enterprise in which he has invested (or is in the process of investing) a substantial amount of capital. The investor must meet the following requirements:

  • Investment Must Be Active. The investor must make an irrevocable commitment of funds that represent an actual, active investment. A paper organization or passive speculative investment like stocks, undeveloped land, or uncommitted funds in a bank account would not qualify as they do not require the intent to direct or develop a commercial enterprise. On the other hand, an active real estate development project such as a residential building, industrial park, or shopping center would qualify as an active commercial enterprise.
  • Investment Must Be Substantial. The investment must be substantial, taking into account all those financial transactions in which the investor's own resources are at risk. There is no absolute test to be applied in determining whether or not an investment is substantial. The essence of the requirement is that the alien invest an amount of capital which equates to a significant commitment by the alien to ensure success of the business and, implicitly, contribute in a substantial way to the U.S. economy. In order for an investment to be considered substantial, it immediately must meet one of two tests: (1) it must be proportional to the total value of the particular enterprise in question, or (2) it must be an amount normally considered necessary to establish a viable enterprise of the type contemplated. In a significant decision the court ordered the INS to accept an E-2 application based on a $50,000 investment in a service business -- an automotive design firm that supplied skilled designers to U.S. auto manufacturers on a consultancy basis. While this may represent the extreme low end of the investment scale, past practice supports a finding of best results with investments of at least $150,000.
  • Jobs Must Be Created. The investment cannot be marginal in nature, that is, one which will only support the investor, and his or her family, in most cases it should create job opportunities for U.S. workers.
  • Investor Must Play Essential Role. The person for whom treaty-investor status is sought must fill a key role with the company, either as the principal investor who will develop and direct the investment, or as a qualified manager or specially trained and highly qualified employee necessary for the development of the investment.

    The two most significant items in the E-2 investor application are to demonstrate that an active investment in a commercial enterprise has been made and that substantial monies have been put at risk.

Conclusion

Investment of substantial capital in the U.S. provides a vehicle for obtaining either nonimmigrant or permanent residency in the U.S. Careful planning must be made and the application procedure must be followed prior to investment of monies. Close analysis must be made of both the E-1/E-2 nonimmigrant investor visa versus the EB-5 permanent resident investor option. Much will depend on the long-range plans of the alien investor along with the tax implications that will follow.

Upon your request, a petition will be made available for you to examine the actual application procedure. There is currently a different petition for each country; the INS has announced plans to develop a single uniform application but it has yet to introduce the new form.



E2 Countries

Africa: Cameroon, Congo (Brazzaville), Democratic Republic of the Congo (Kinshasa), Egypt, Ethiopia, Liberia, Morocco, Senegal, Togo, Tunisia

Asia: Bangladesh, China (Taiwan), Japan, Korea, Kyrgyzstan, Mongolia, Philippines, Singapore, Sri Lanka, Thailand

Australia: Australia

Central America: Costa Rica, Honduras, Panama

Europe: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia/Herzegovina, Bulgaria,, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Ireland, Italy, Kazakhstan, Latvia, Lithuania, Luxembourg, Macedonia, Moldova, Netherlands, Norway, Poland, Romania, Slovakia, Slovenia Spain, Sweden, Switzerland, Ukraine, United Kingdom, Yugoslavia

Middle East: Bahrain,Iran, Jordan, Oman, Pakistan, Turkey

North America: Canada, Mexico

South America: Argentina, Bolivia, Chile, Colombia, Ecuador, Paraguay, Suriname







Kingston, Martinez & Hogan immigration represents clients throughout the United States and California, Ca, Southern California, santa barbara, goleta, santa ynez, goleta valley, ventura, oxnard, camarillo, los angeles, and Los angeles county. nationally, many clients come from Nevada, Arizona, Oregon, Washington, new mexico, colorado, detroit, chicago, dallas, new york city, boston, philadelphia, and washington d.c. Internationally, we work with companies and individuals all over world, including mexico and canada.