U.S. Investor Visas

E-1 and E-2 visas are issued by U.S. consulates for a maximum of five years at a time. They are renewable in five-year increments. However, when the E-1 or E-2 visa holder arrives at a U.S. port of entry and presents their visa to a U.S. Customs and Border Protection (CBP) officer, E-1 and E-2s are only admitted for two years at a time. On each subsequent future arrival to the U.S., however, the E-1 and E-2 visa holder can be admitted for another two-year period all the up to the visa expiration date under law.

An individual E1-1 or E-2 visa and E-1 or E-2 company registration can be renewed in five-year increments theoretically indefinitely, as long as the E-1 or E-2 enterprise in the U.S. remains operational and viable, and the E visa holder can demonstrate they continue to meet the requirements.

There are several requirements that must be met to qualify for an E-1 treaty trader visa:

• The foreign national applicant must be a citizen of a treaty country.

• The trading firm for which the foreign national applicant works must be owned by at least 50% of people with the same nationality as the applicant.

• The international trade must be “substantial,” and already existing. Intent to trade is not enough.

• More than 50% of the trade must occur between the U.S. and the treaty country of the applicant.

• The applicant must be in a supervisory or executive position or possess highly specialized skills essential to the operation of the company.

Substantial trade means there must be a “continuous flow” of goods between the U.S. and the treaty country. U.S. consular offices are told to focus more on the volume of trade and less on the monetary value, so one high value transaction is not enough to be considered substantial. That being said, monetary value is a factor. It’s generally recommended that there be at least 25 transactions with the dollar value exceeding $250,000, but there could be less.

ImLaw routinely recommends that an E-2 investor visa application be presented at a U.S. consulate abroad as opposed to U.S. Citizenship and Immigration Services (USCIS). Corporate investors are required to submit an E-2 company registration application package with the U.S. consulate abroad in advance of any employee making an individual E-2 visa application under the company. Although the law does not specify a minimum investment amount, in our experience, we have found U.S. consular officers will not consider anything less than $100,000 - $150,000 (USD) to be “substantial.”

It is critical to carefully source and document the investment funds from start to finish —from the initial earning or acquisition of the funds to the actual transfer and investment of the funds in the U.S. and what they were used to purchase. For example, if investors received the funds from the sale of a property, they will typically be required to provide copies of the purchase agreement and closing documents for the sale, along with bank account records showing the payment or receipt of the funds. If the investor received the funds as a gift, we typically work with the individual making the gift (the “gifter”) to create a detailed affidavit that confirms the transfer of funds is not a loan but a true gift with no obligation or expectation of repayment.

If the E-2 funds will be (or have been) invested in real estate, security deposit and/or prepayment on an office lease, inventory, equipment, supplies, and/or labor (payroll expenses for hired U.S. employees) for the U.S. business, evidence such as purchase agreements, closing documents, lease agreements, receipts, contracts, invoices, bank statements, credit card statements, payroll records and employer quarterly tax reports (i.e., 941 Forms) should be collected. Regarding the investment of funds in the U.S., investors must prove the “who, what, where, when, why, and how. Strategizing with experienced business immigration counsel like the attorneys at ImLaw in advance of transferring and investing any monies will ensure all steps in the process are documented timely and correctly.

The E-2 classification is beneficial for several reasons. There is no cap or limit on the number of E-2 visas that can be issued. In addition, there is no lottery like the H-1B — you may file for an E-2 visa at any time of the year. The E-2 allows individuals to direct and develop their own business, which is incredibly rewarding, and it also is a convenient and useful vehicle for corporate investors to send managerial, supervisory, and essential workers to the U.S.

For corporate investors, employees must possess the same nationality as the company itself, but they do not have to be existing employees. In other words, a qualifying company abroad that obtains an approved E-2 registration can apply to transfer individuals possessing the same nationality to the U.S. without having employed them first (unlike the L-1 visa category which requires employment abroad for one year on a full-time basis before being transferred to the U.S.). Finally, spouses of E-2 visa holders enjoy the benefit of being authorized to work in the U.S., which is attractive for families.

Certain E-2 requirements can be challenging for investors. The experienced ImLaw team works closely with clients on strategies to meet each element:

• Proving the funds are truly being put ‘at risk’ in an active, substantial investment. Funds sitting passively in a bank account do not qualify.

• Reviewing and providing feedback on the investor’s five-year business plan to show the new business will be viable and meet the E-2 visa requirements.

• The “marginality” requirement — proving to the consular officer that the investment will benefit the U.S. economy and not merely serve as a subsistence income for the investor and accompanying family members. Hiring U.S. workers is one of the best ways to overcome marginality.