Attorney Robert Pascal on E- Visas

A.  The E Visa - Treaty Trader & Treaty Investor

E Visa - Immigration Attorney

An E-2 treaty investor visa is a nonimmigrant visa which allows foreign entrepreneurs from treaty nations to enter into the United States and participate in substantial trade. This E-2 visa basically allows business owners, managers and employees to remain in the US for extended periods of time to oversee their investment or enterprise. The visa is renewable every two years and there is no restriction as to the number of times the visa can be renewed. To qualify, the foreign national must be from a country that holds a bilateral investment treaty with the United States. All the EU nations, including the United Kingdom, along with the Scandinavian countries qualify. Select countries from Latin America, Africa, Eastern Europe and the Middle East also have eligibility. You will need to check with an immigration attorney or the US Department of Homeland Security to see if you are from a qualifying country..

The purpose of the operations of the trade can also be to develop and direct the operations of an enterprise in which the alien has invested, or is in the process of investing under the provision of the Immigration and Nationality Act. The investment activities include the purchase of a new business, of which the investment must be significant to ensure the successful operation of the enterprise and should be proportional to the total investment. The investment should be more than half the total value of the enterprise or, in the case of a new business, the investment amount should be sufficient to ensure the successful operation of the enterprise. There are certain amounts of capital investment and the percentage of ownership the USCIS will use to determine if the investment does meet the “substantial” threshold. Please consult with an immigration attorney to see if you meet those guidelines.

As a general basis, the alien applying for the visa should be serving the company in a supervisory or executive capacity in nature that involves skills which is essential to the operation of the business, in other words, the alien should be a key employee, or owns at least 50% of the company.

The percentage of ownership is increased where there is a low cost business enterprise. In these situations, the capital investment and ownership must be higher than the percentage of investment in a high cost-enterprise; this is to ensure that the investment is substantial.
The alien’s investment must be a real operating enterprise; applicant will not qualify with speculative or idle investment, just the same uncommitted funds in a bank account or similar security are also not considered an investment.

The investment made should not be marginal, the investment should have the capacity to generate a significant amount of income; more than the amount needed to provide everyday living expenses for the investor and his family, and in other words it should have a significant economic impact in the United States. The investor must be in control of the funds, the funds should not be one that is secured by the assets of the enterprise.
The E-2 investor does not require a specific amount of employees, but cannot be just a marginal investment either. In most circumstances, 2-3 employees are sufficient to meet this threshold. Other positive aspects to this visa are that a spouse can receive employment authorization, and minor children can attend public schools.

Applicants applying for the E-2 Investor visa would need to make an application at the U.S. Embassy Consulate that has jurisdiction over their place of permanent place of residence. Applicant can also apply at any U.S. Consulate abroad, however it may be more difficult to qualify outside of one’s permanent residence. An interview at the United States Consular office where application was made is required as part of the application process for applicants 14 and 79 years of age; however, applicants age 3 and younger as well as applicants age 80 and older are not required to do an interview unless requested by the consulate office. Each applicant applying for an E-2 investment visa should complete and print the following forms; online Nonimmigrant Visa Electronic Application Form DS-160, Nonimmigrant Treaty/Trader Investor Application Form DS-156E, a passport valid for travel to the United States with a validity date of at least 6 months and beyond the applicant’s intended period of say within the United States, unless country specific agreements provided exemptions. If more than one person is included in the passport each form must complete a copy of each the applications. Along with the completed application forms each applicant is also required to submit 1 (2×2) color photograph. The application cost or each applicant is $390.00, all U.S. Immigration fees are quoted in U.S. Dollars.

An applicant applying for a Treaty Investor (E-2) visa must first establish that the investment enterprise meets the requirement of the law, and complies with the requirements of the E visa classification. Special forms may be required by the Consular Officer for the sole purpose of establishing adequate eligibility, as well as requesting additional documentation which may also assist them to determine eligibility. It is not possible to specify the exact documentation needed by the Consulate as each circumstance varies by applicant.

Applicants please remember that attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in permanent refusal of a visa or denial of entry into the United States.

There are certain activities which may result in being ineligible for a U.S. visa. However, in some instances an applicant who is ineligible, but is properly classified for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if and when the waiver is approved. If the Consular Officer should find it necessary to refuse an applicant the issuance a visa, the applicant may make a new application if there is new evidence to overcome the denial. In the absence of new evidence Consular Officers are not obliged to re-examine such cases.

Spouses and unmarried children under the age of 21, regardless of nationality may receive derivative E visas to accompany the principal visa holder. The spouse of an E visa holder may apply to the Department of Homeland Security for employment authorization, however, dependents children are not authorized to work in the United States. Please see website for list of treaty countries for review, americanlaw.com/treatylist.