E-2 Treaty Investor Visa

Over many years, the U.S. has entered into treaties with foreign countries for both commerce and navigation. Currently, for E-2 non-immigrant visa purposes 80 of these treaties exist. Some have been in existence since 1815 and as recent as 2008. The treaties were implemented to foster, facilitate and encourage more financial investment into both participating countries.

These visas can be processed through the U.S. (if the applicant is in the U.S.) with premium processing, if necessary, or through the home country U.S. Embassy or Consulate (if the applicant is abroad) without premium processing and can become complicated to properly petition. Employment of an attorney well versed in business is advised as business formation, business purchase, investment strategies and income tax consequences may be involved. For investor visas from countries which are not treaty investors look to EB-5 visa.

Eligible Employers and Investors

Investors can be foreign nationals, entrepreneurs of treaty traders or business entities, like foreign corporations, who make "substantial investments" in the U.S. into a real operating enterprise. They must be coming to the U.S. to develop and direct the investment. Currently, there are no annual cap limitations on these visas. These investors often purchase a small franchise in the U.S.

Type of Investments

The investment cannot be marginal, must be at risk and controlled by the investor. The lower investment limit is between $100,000 and $200,000 US Dollars but lesser amounts have been approved. Nor can it merely provide a living wage to the investor and his/her family. Speculative, idle or passive investment, uncommitted bank funds and loans secured by assets do not qualify.

Substantial Investments

The test of being substantial, completed by the U.S. Department of State (DOS) is whether the investment value is substantial as a percent of the market value of the enterprise and whether the capital invested is within the range of investment for similar type enterprises. For example:

• For investments under $500,000 US Dollars-75% of that investment value is expected.
• For investments between $500,000 US Dollars and $3,000,000 US Dollars-50% of that investment value is expected,
• For investments over $3,000,000 US Dollars-30% of that investment value is expected.

There are some exceptions for startup and service businesses upon a showing that it is common practice in certain businesses to invest less and for businesses.

Employees of Investors & Family Members

If not a principle investor the employee must:

• Be key to manage the affiliate or branch of the foreign,
• Be employed in an executive, managerial, supervisory or highly skilled capacity,
• Be essential to the operation or set up of the investment. Ordinary skilled and unskilled workers do not qualify.
• Be spouses and unmarried children under 21 of the E-2 visa holder,
• Intend on returning to their home country when the investing is completed. They need not maintain their foreign home.

Submission Process From the U.S.

The employer, for its employees or the individual foreign treaty trader should submit a USCIS Form I-129 & E supplement, with all accompanying documentation and pay all required filing fees plus a possible premium processing fee. Processing time generally takes between 4 and 6 months. All family members already in the US should file one USCIS Form I-539, all accompanying documentation and pay all required filing fees. Their nationality need not be from the foreign treaty trading partner.

Submission Process From Outside the U.S.

To apply, the treaty trader employee or individual treaty trader will need passport size photographs, his/her passport valid for 6 months

Submission Process From Outside the Country

To apply, the treaty trader employee or individual treaty trader will need passport size photographs, his/her passport valid for 6 months beyond the intended period of stay, Forms DS-160 & DS-156E obtainable at any home country U.S. Embassy or Consulate and the nonrefundable visa processing fee. Some US Embassies and Consulates have special rules about what days you can enter, entry procedures and entry fees. So, check with your home country U.S. Embassy or Consulate. A visa issuance fee will also be owing upon approval.

Visa Period of Stay

The E-1 visa will be valid for up to 2 years and automatically renewed for another 2 year period each time the individual trader or employee travels outside the U.S. There is no maximum number of permitted extensions. However they must intend to depart the U.S. when the treaty trading is completed.

This is an intricate and complicated visa and a Charleston Immigration attorney can assist you to navigate all of its requirements. Contact us today.