To qualify for E-2 status an investor must own at least 50% of the enterprise and also must be actively engaged in the enterprise. The funds must be at risk, namely, the funds must be subject to partial or total loss if the investment fails. Besides cash, goods and machinery for the business properly evaluated may be included in the investment.
A SUBSTANTIAL INVESTMENT
What may be characterized as substantial is relative to the nature of the enterprise Depending on the type of business, the amount invested must be a financial commitment
that will ensure the successful operation of the business. If the cost of the enterprise is low, to be considered substantial, the investor must own a higher proportion of the business, e.g., if the total investment in the business is only $100,000 or less, then the E-2 investor should be providing up to 100% of the investment. A service business will not require as high an investment as a manufacturing business. As long as the capital placed at risk is enough to sustain the business to ensure its viability, this will satisfy Immigration’s requirements.
The enterprise must have the capacity to generate more than just enough to pay the living
expenses of the investor and his family. A 5 year plan is usually required to show the Immigration that the enterprise projects are greater than mere self employment for the investor.
Factors to be considered by Immigration include job opportunities to be provided Americans and permanent residents and that the investor will be an executive or manager of skilled and/or unskilled workers and will have a reasonable expectation of success in the endeavor.
The investor must have a controlling interest in the business. The investor needs to be developing and actively directing the enterprise. Ownership of a controlling interest is not enough. The investor must also be in actively in charge and cannot cede control to employees or another investor. Any foreign employees must have the same nationality as the investor for the E-2 visa and these employees must be either executive or supervisory or have special qualifications and will be for the enterprise essential employees. Essential requires either a degree of proven expertise, uniqueness or high skills and a salary commensurate with his/her needed expertise.
Spouses and children are entitled to E-2 visas as well as the principal alien. The E-2 spouse may also receive employment authorization. Children of E-2s can attend school without changing status. Before commencing the E-2 process, you need to check with us to see that your country has an E-2 treaty with the U.S.
TREATY INVESTOR COUNTRIES
Major countries that have E-2 treaties with the U.S. include Argentina, Canada, China, Chile, Colombia, France, Germany, Italy, Japan, Korea, Mexico, Pakistan, Philippines, Poland, Serbia, Singapore, Spain, Sweden, Switzerland, and The United Kingdom. If you are from another country, check with us to be sure your country has a treaty with the U.S.
If you need help or advise, call us at 212-944-9420.