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How to Apply for an E-2 Treaty Investor Visa?

The United States is always keen to encourage large inward investments, especially from countries with which it maintains robust economic and trade ties. The E-2 Treaty Investor visa is designed to facilitate this, allowing investors to come to the US to invest ‘substantial’ amounts of capital. In this article, we will explain what the E-2 Treaty Investor visa is for, who can apply, the eligibility criteria, and the application process.

What Is The E-2 Treaty Investor Visa?

The E-2 Treaty Investor visa is a ‘nonimmigrant’ classification intended to enable nationals with which the US has treaty agreements to be admitted for the purposes of investing a substantial amount of capital in a US-based business. The US Citizenship and Immigration Services (USCIS) guidance states that this is for nationals of countries with commerce and navigation treaties with the US, or countries with which the US “maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation”. In addition, specific employees of an eligible investor or a qualifying organisation may also be able to apply for the E-2 visa.

The current list of E-2 treaty countries is as follows:

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, Taiwan, Colombia, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Serbia, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, and United Kingdom.

Am I Eligible For An E-2 Treaty Investor Visa?

According to the USCIS guidance, in order to apply for an E-2 Treaty Investor visa, applicants must meet the following eligibility criteria:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation (a list of these is above);
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

Employees of a Treaty Investor will also be eligible for an E-2 visa if they:

  • Have the same nationality as the principal treaty investor
  • Meet the definition of “employee” under relevant law; and
  • Either be engaging in duties of an executive or supervisory character or, if employed in a lesser capacity, have special qualifications.

As part of the application vetting process, the USCIS will make a number of checks that the business which will receive the investment is ‘bona fide’; this means it must:

  • Be real
  • Be an active operating commercial or entrepreneurial undertaking
  • Produce services or goods for profit.
  • Meet applicable legal requirements for doing business within its jurisdiction.

If any of these criteria are in doubt, then there is a risk that the E-2 visa will be refused by USCIS. If you have any specific concerns that the business you intend to invest in may not fulfil all of these criteria, it is advisable to speak to an immigration attorney in the US who can advise you further.

What Is Meant By A ‘Substantial Amount Of Capital’?

The USCIS defines that a ‘substantial amount’ of investment capital must be:

  • Substantial in proportion to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • 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.

As such, the USCIS doesn’t necessarily define specific amounts of investment that must be met; rather, it must be sufficiently large in relation to the cost of establishing a new or existing enterprise of the same type.

How Long Can I Remain In The US On An E-2 Treaty Investor Visa?

If approved, your visa will be initially granted for a period of two years. Towards the end of this period, you may then be able to further your stay for another two years. There is no set limit on the number of times you can extend your visa before it expires. The only provisos being that you must still qualify for the visa, and you must genuinely intend to leave the US once your visa expires or is terminated.

How Do I Apply For An E-2 Treaty Investor Visa?

There are several steps required in order to acquire an E-2 Treaty Investor visa, as follows:

  1. Register your company with the E-Visa Unit; this is done by:
    1. Complete the online visa application form DS-160;
    2. Registering on the Visa Appointment Service (you will need to pay the required fee)
    3. Submit your supporting documents electronically
  2. Your case will be reviewed by the E-Visa Unit – once completed, you will be asked for any further documents needed and given a list of available appointments.
  3. Attend an interview within 90 days of being notified.

Final Words

If you are considering making an application for an E-2 Treaty Investor visa in 2021, it is important to ensure that you complete the application form accurately and you provide all of the necessary supporting documents. Doing so will give you the best chance of receiving a positive decision, allowing you to travel to the US to carry out your investment and business activity. If you are short of time or unsure of the process, consider engaging the services of an immigration attorney in the US who can handle the application on your behalf.

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