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E-2 (Treaty Investor)

US Business Visa Category E-2 (Treaty Investor Visa)

Suitable for entrepreneurs setting up, buying or investing in a US-based business

Both the E-1 (treaty trader) and E-2 (treaty investor) visas were established in conjunction with Bilateral Investment Treaties (BIT) between the US and the trader’s/investor’s country of citizenship, and Bilateral Treaties of Commerce – including Treaties of Friendship, Commerce and Navigation (FCNs).

The E-1 and E-2 visas have been designed to allow traders, investors and their employees to enter the US on a non-immigrant basis. Under this visa, visitors can trade or invest provided they satisfy all requirements and are a proven member of a participating treaty country. You can find a list at the US Department of State.

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How do I quality for an E-2 visa?    

To be eligible for treaty investor status, you must:

Be a national of a treaty country

  • If you’re a company, at least 50% of the membership interests/shares have to be owned by individuals who hold proven nationality of the applicable treaty country.
  • If you’re an employee of a treaty trader country, you must prove you have the same nationality of the company you work for.

To establish the authentic nationality of your company, you must consider the following (amongst other factors):

  • Stock holder nationalities
  • Where the company is listed if it’s publicly traded – and whether it’s listed on one sole exchange
  • The percentage of stock that’s owned by treaty country nationals
  • Whether or not members possess lawful US permanent residency

Enter for the sole purpose of overseeing operations of a company/enterprise in which you’ve invested money – or are in the process of investing substantial capital in the US

  • Risk – the relevant investment must place lawful obtained, owned and controlled capital at commercial risk with the objective of profit. Such capital will be subject to expected loss if the investment isn’t successful.
  • Commercial & active investment – investment must be proven to be active, as passive investment will not be accepted. The enterprise in which investment is occurring must be commercial, meaning not-for-profit organizations do not qualify.
  • Substantial – whether or not an investment is substantial will be individually judged by a specific proportionate test. It is defined as a weighing exercise in which the ratio of total funds being invested is compared to the full cost of purchasing/creating the relevant enterprise. However, with regard to small & medium-sized enterprises (SMEs) where the cost of purchasing/creating will be low, a greater percentage of investment is required to be considered substantial.

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How long is an E-2 visa valid? 

This heavily depends on the country from which you’re applying. For example, a British citizen with a strong application will generally be granted for 5 years. but could be approved for as little as 2 years – it all depends on application strength and individual circumstances.

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Am I able to bring my family under this visa?     

Yes – your children (under 21 years of age) and spouse can also be eligible to attain E-2 visas.

The basis for this depends on their relationship to you as the principle E-2 holder.

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Can my family study and work?  

If application is successful after US entry, your spouse is permitted to work and/or study. Any unmarried children you have under the age of 21 can also study – without needing an F-1 Student Visa.

Before your spouse is able to legally work, Employment Authorization will need to be granted. However, your children can attend school or college/university with no specific authorization necessary.

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What are the main benefits I’ll receive with an E-2 Treaty Investor visa?   

  • Cost & processing time
  • Duration
  • Ideal for new business ventures
  • Staffing requirement lower than L-1
  • Typically provides greater time to build a successful business than other visa categories
  • No previous employment at a foreign company is required

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What are the main limitations of an E-2 Treaty Investor visa? 

  • Substantial investment requirement
  • One-person businesses aren’t considered eligible
  • Business in question must be grown for renewal

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Where does filing take place?   

When filing for an E-2 visa, there’s two ways to do this – consular processing and change of status.

If you’re not already lawfully present within the US, you won’t be eligible for change of status. But if you are present in the US, it’s recommended to call to discuss the most appropriate option for you.

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Can I obtain a green card through an E-2 visa?   

There are no current direct routes to successfully obtain a green card – but it’s still possible or you to qualify for lawful permanent residency through other means. This can be done through EB-1C, Eb-5 or other options dependent on your individual circumstances.

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Which employees are eligible to have E-2 visas? 

To obtain this visa, employees must:
  • Have the same nationality as the treaty employer
  • Be employed in a supervisory or executive role
  • Be considered an essential employee if non-supervisory – with relevant qualification

A supervisor/executive employee will be established by looking at the specific roles within their job title. These typically include substantial responsibility and control.

With regard to whether an employee is considered essential or not, multiple factors will be considered. These include:

  • Unique qualities of their skills relevant to the organization
  • Proven expertise or degree
  • Current salary
  • Availability to work

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Frequently Asked Questions (FAQs) About Taxes, Company Formation, and Residency in the U.S.

We’ve compiled over 150 of the most frequent questions and answers (FAQs) on tax, company formation, and residency in the U.S. in our knowledge base. You can visit our knowledge base here.

If you find that your personal questions have not been answered, book a telephone consultation here.

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Get Advice on Taxation, Company Formation, and Residency in the U.S.

If you already have a project that you want to implement in the U.S., you will most likely have already dealt with the intense framework conditions in the U.S. Online, you can find a wealth of information on almost every subject. Though all this information is available, it is common for one to reach a point of confusion. There are too many aspects to consider simultaneously and the starting position can be complex.

To solve this mental knot and pave your way to success, jump on a 1-hour telephone counseling session based on taxation, incorporation, and residency in the U.S. In this conversation, we will discuss specific technical issues such as tax, U.S. corporations or LLCs. Or we can discuss any strategic options you are considering.

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