In many ways, E-2 classification resembles lawful permanent residence (LPR) status. For instance, E-2 nonimmigrants may engage in self-employment, remain in the United States for an indefinite period (renewal required every 2 years, but no limit on the number of renewals), and are not required to maintain ties to their home country.
In order to be eligible for an E-2 visa, an investors must be a national of a country that is a party to a treaty with the United States “that was intended to enhance and facilitate economic and commercial interaction between the United States and the treaty country.” A list of qualifying countries can be found on the website of the U.S. Department of State.
Nationals from qualifying countries must meet the following requirements to be eligible to apply for an E-2 visa to enter the United States: (1) develop and direct the operations of an enterprise; (2) in which he/she has invested, or is actively in the process of investing; (3) a substantial amount of capital.
The requirement that the E-2 investor “develop and direct the operations of an enterprise” must be established by showing that he/she has at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
The term “investment” means the treaty investor has placed capital at risk with the objective of generating a profit. To qualify as an investment, the capital must be “irrevocably committed” and subject to partial or total loss if the investment fails. The treaty investor also must be able to demonstrate that they have possession of, and control over, the capital invested and that the funds have not been obtained, directly or indirectly, from criminal activity.
There is no set minimum dollar amount that will be considered “substantial” for purposes of E-2 eligibility. The test for substantiality could be meet by demonstrating that the investment is: (1) substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; (2) sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; or (3) of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
In general, a realistic minimum investment should probably be $100,000 or more to be considered “substantial.” However, it is possible that investments of less than $100,000 could qualify in certain instances.
Spouses and dependent children (unmarried and under age 21) of an E-2 nonimmigrant are also entitled to E-2 status. Additionally, an employee of a treaty investor may be eligible for an E-2 visa if the employee is in or is coming to the United States to engage as an executive or supervisory, or has special qualifications that make him/her essential to the efficient operation of the enterprise.
Although the E-2 visa has stringent requirements of its own, it is less cost prohibitive than EB-5 visas and thus a viable option for more foreign investors. For individuals seeking to enter the United States through an investment visa, an E-2 visa may be a practicable alternative to the EB-5. I