E-2 Investor Trader Visa

The idea of starting your own business overseas in the United States may always have been at the forefront of your mind. Unfortunately, most are not encouraged by the “Big” business EB-5 Green Card category where a half a million or a million dollar investment is required. Fortunately, many investors found that the E-2 Treaty Investor Visa was the perfect option for them. The key advantages of the E-2 Visa is the infinite duration, the fact that your family can come with you and also work in the U.S., & the relatively small investment amount that is required. In fact, your dream of becoming a business owner in the U.S. could become a reality by spending as little as $15,000.

The remainder of this article summarizes the main requirements for an E-2 Visa and some of the common issues.

1. You Must Be National of a Treaty Country
The E-2 Investor Trader Visa is only available to people from the countries that the U.S. has a Treaty with. Many Western countries are on the list but there are also countries from Africa, Asia and the Middle East on the list. Israel was just recently added to the list. A complete list of the countries on the list can be found here.

2. You Must Have Invested or Be Actively in the Process of Investing
In order to satisfy this part of the test, you must fulfill three requirements.

I) Show Legitimate Possession and Control of the Funds
You must invest funds that you have obtained from a lawful means. While dollar for dollar accounting is not required, you must prove to the Government that you either saved the money, were given the money as a gift or legitimately earned the money. There are various forms of proof that will satisfy this requirement including tax returns, bank statements, investment accounts and more. For some countries, this can be problematic if records are not readily available or the country is subject to a high degree of corruption.

II) All Funds Invested are “At Risk” & Irrevocably Committed All of the assets invested must be personal assets subject to risk of loss and this really means that you actually have something to lose. Loans are fine but you must be on the hook if there is a loss and this requirement forces you to sign contracts and/or spend money prior to the approval of the Visa. At risk money does include credit card debt or other loans as long as those debts are not secured by business assets or in the name of a limited liability business. This provision is one of the “scarier” provisions related to an E-2 Visa.

III) You Must Be Close to the Start of Business While you cannot accept money from clients or “do business” until the Visa is approved, you must be close to starting your business. The idea here is that the U.S. government does not want to approve Visas for people who “may” set up a business in the U.S. or who have a “desire” to start a business. As such, your business must be at the start up ready phase. This means you should have a signed lease, your business bank account should be set up, you should have a website, and you should have purchased whatever you need to get the business up and running.

3. You Must Be in a Position to “Develop & Direct” the Business With Skills You cannot get the E-2 Visa unless you are the one that is going to direct and run the business. Also, you must have the appropriate skill set such that the Government has faith that the business will be viable. For example, you would likely not have much success getting an E-2 Visa if you wanted to open a restaurant if the only experience you had was eating in a restaurant. Normally, your educational background and experience should suggest that you will be in a position to make the business a success.

4. Your Investment Must Be Substantial The U.S. Government does not have a predetermined amount that they consider substantial. As such, your investment could be as low as $15,000 or as high as millions. You can invest $50,000, in a service business, with $20,000 for equipment, furniture, and other items, and depositing $30,000 in a business account as operating working capital. You should note that idle cash sitting in a business account is NOT considered an investment, but the government will consider a reasonable amount of working capital as part of an investment. This small investment is sufficient because you are setting up a service oriented business which does not cost much to set up. If the business, for example, was say a car manufacturer, the required investment amount would have been substantially more. You should ensure that you keep records of all of your expenditures as the government will want to see them.

5. Your Investment & Business Cannot Be Marginal This means that the business cannot be set up so that it provides a means of living just for yourself and family. You can demonstrate a business is not marginal by putting together a business plan that shows growth over a 5-year period or by showing that you plan to hire employees in the future.

6. You Must Intend to Return to Your Home Country After Expiration This is not a difficult test to meet and all you must do is sign a document that indicates you plan to return home once your visa expires. Unlike many other visas you do not have to show any ties to your home country, like a home there.

In summary, there are six requirements for getting an E-2 visa:
• You must be a citizen of a country that has an investor treaty with the United States.
• You must be coming to work in the U.S. for a company you own or one that is at least 50% owned by other nationals of your home country.
• You must be either the owner or a key employee of the U.S. business.
• You or the company must have made a substantial investment in the U.S. business.
• The U.S. company must be an active, for-profit business.
• You must intend to leave the U.S. when your business here is completed.
Once you have opened a qualifying company engaged in trade between your home country and the United States, or been offered a job as a key employee of a qualifying company owned by others from your country, getting an E-2 visa is a one or two-step process, depending on whether you are applying from within the U.S. or at a U.S. consulate outside the United States:

Step 1: If you’re outside the U.S., you file an application at a U.S. consulate there. (The vast majority of nonimmigrant visa applications are filed at consulates, because most cases don’t qualify for U.S. filing.) If you are already in the U.S. legally on some other type of nonimmigrant visa, you can, under some circumstances, apply for a change to E-2 status at a USCIS office inside the United States. (However, if you were admitted without a visa, such as under the Visa Waiver Program, you may not carry out the application step in the United States.)

Step 2: You use your visa to enter the U.S. and claim your E-2 status.
All in all this is a great Visa for those who wish to start a small business in the U.S. The Visa does have an extensive documentation requirement and you are strongly advised to seek the assistance of a lawyer.

Note:
Treaty Trader/Treaty Investor, E Visa Applicants I am applying for a Treaty Trader / Treaty Investor, E Visa. Do I need to fill out the DS 160 and the DS 156E? It depends. If you are a Treaty Investor (E-2) applicant, you need only complete the DS-160. If you are a Treaty Trader (E-1) or an Executive/Manager/Essential Employee (E-1 or E-2), you must complete the DS-160, and you or your employer must complete the paper DS-156E form.

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