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E-2 INVESTOR VISA

GENERAL DESCRIPTION

E-2 (Treaty Investors) – nonimmigrant visa for investors from certain countries – participants of bilateral trade agreements (commerce treaty) with the US. Russia does not have such agreement with the U.S., and Russian citizens cannot use this visa program.

REQUIREMENTS

Investor should be a national of a country – participant of a treaty of commerce with the US.
Investment must be substantial. Investor should either buy an existing business or create a new enterprise by investing a substantial amount, and such enterprise should create new jobs. The investment amount is determined based on the type of business enterprise and its activities (minimal market value of similar businesses in the U.S., minimal price of similar businesses, operating costs). There is no minimum investment amount requirement for this program as it exists for the EB-5 program. In average, the minimum investment amount is around $100K, however, if the business nature allows to operate it with profit and successfully, an investor can probably start with as minimal as $50K investment amount. If it is not apparent from the business plan that the business venture can operate with the starting budget, the immigration service can deny your E-2 visa application. The immigration business plan is submitted with the E-2 visa petition.
Investment funds must come from a lawful source: employment, business income, sale of real estate, present, inheritance, etc. Depending on the source of income, certain documentation must be provided: bank statements, agreements, tax returns, judgements,
Investor should be actively in the process of investing, and funds must be “at risk”. Certain commitments that demonstrate that the E-2 visa applicant is ready to immediately start the business in the US should be made at the time of E-2 visa application. This means that certain funds should be actually invested and be “at risk” (e.g., signed lease agreements, contracts, purchase equipment).
The enterprise cannot be currently or in the future marginal. This simply means that the business must have the potential to create jobs and benefit the US economy contrary to just bringing minimal income for the investor and investor’s family.
Investor should actively manage and control the E-2 business. Passive investments cannot satisfy this requirement.
Investor should have at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
Investor should have the education and experience sufficient to manage the investments (Immigration authorities (USCIS) will closely look at the investor’s experience).

PROCEDURE

Change of Status in the US

It is generally possible to change status to E-2 if the investor is in the US and visa status allows (i.e., B-1, F-1, H-1). Attorney advice is recommended.
The change of the status can be done by filing I-129 (Petition for Nonimmigrant Worker) with USCIS. The form I-129 must be accompanied by the required documentation and evidence as instructed by the consulate including business plan, source of funds documentation, investment confirmation, background and educational information.
If the I-129 is approved, the investor will receive an approval notice in the mail. The approval notice provides the investor with the E-2 visa status, which authorizes to be present in the U.S. legally, but the approval does not provide a reentry permit or visa in case if the investor leaves the U.S. In order to be able to reenter to the U.S., the investor must apply for E-2 visa at a local U.S. Consulate and submit the full application package for E-2 visa including all supporting documentation, filing fees and evidence.
Family members (spouse and children under 21 years old) can accompany the investor in the US. In this case family members must file I-539 (Change of Nonimmigrant Status).

It is recommended to consult with an immigration attorney to discuss your filing location. Certain individuals cannot change their status in the US, e.g. J-1 visa holders with the 2 year requirement to stay outside of the US, no legal immigration status in the US, individuals who entered in the US based on the Visa Waiver Program, etc. If the investor plans to travel outside of the US in the future, it might be advisable to apply for E-2 visa through consulate processing.

Applying outside of the US

Form DS-160 and DS-156E must be filed with a local U.S. Consulate. The processing time will depend on the consulate.
The forms DS-160 and DS-156E should be accompanied by the required documentation and evidence as instructed by the consulate including business plan, source of funds documentation, investment confirmation, background and educational information.
Visa interview will need be scheduled at the Consulate. Upon approval by the Consulate, E-2 visa will be stamped in the passport.
Family members may apply together with the principal applicant or late at any time while the E-2 status is effective by filing DS-160.

NOTES

E-2 visa can be initially issued for 2-5 years depending on the Reciprocity Schedule.
Investor can apply for visa extension unlimited number of times.
Investor’s spouse and children under 21 years old have a right to enter in the U.S. together with the investor. Investor’s spouse can apply for an employment authorization while in the U.S. Investor’s children cannot be in the U.S. based on the investor’s E-2 visa after they turn 21 years old.
The areas for investment in the E-2 program are not limited. There are no requirements to the type of business, reputation or recognition. It can be a gas station, beauty salon, restaurant, etc.

Investment in real estate

An E-2 visa can be obtained by investment in real estate, but not every real estate investment will satisfy the E-2 requirements. Actively managing and directing investment is one of the conditions of E-2 visa. Real estate investments that will generate income by simply holding the title to real estate without active involvement of the investor in a day-to-day management will be considered as passive income and will not qualify as an E-2 investment. However, real estate investment which will require the investor to renovate the property, change the branding, services, but and sell in the future, actively manage the real estate can be considered as a qualified investment for E-2 visa. As an example, buying a hotel, renovating it, changing the service and active marketing can qualify the investor for E-2 visa.

OUR LEGAL SERVICES

Our attorneys will review all documents and your individual circumstances, and only then we can make an evaluation of your case.
We will assist with preparation of the required petition and documents.
We will advise on every step and every document that you are required to submit with your petition.
We will assist in submission of the visa application to your local U.S. Consulate (DS-160/DS-156E) if you are applying outside of the U.S., and prepare you for the interview or with submitting I-129 petition.
We will contact the immigration authorities about your case.
We will receive all immigration correspondence in the U.S.

Filing Fees: USCIS Fees Schedule.

Attorney Fee: we determine our fee only upon careful consideration of all individual facts and documents.