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The E-2 “Entrepreneur Investor” Visa Provides a Path for Small Business Owners to Live in US

For foreign investors wishing to obtain a visa to live and work legally in the United States, there are two options available through the E-2 and EB-5 investor visa programs.  The E-2 Visa requires less startup capital (around $100,000), and is the fastest way to obtain a visa, although it is not a path to Legal Permanent Residency (Green Card).  The EB-5 Visa requires an initial investment of USD $500,000 to $1 million, and comes with Legal Permanent Residency (Green Card), and ultimately, US citizenship.  This article will discuss the details of the E-2 “Entrepreneur Investor Visa.”

What is It? The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a “substantial amount” of capital in a U.S. business.  Certain employees of such a person/qualifying organization may also be eligible for this classification. Click here for a list of treaty countries (note, large countries like Russia, Brazil, India and mainland China are excluded from this list).

Eligibility: To qualify for E-2 classification, the treaty investor must:

  1. Be a national of a country with which the United States maintains a treaty of commerce and navigation

  2. Have invested, or be actively in the process of investing, a “substantial amount” of capital in a bona fide enterprise in the United States

  3. 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.

Length: 1-5 years with indefinite extensions as long as the business remains “viable”.

Availability: No cap (unlimited).

Deadlines: No deadline; this is the fastest path to a work visa (generally, 45 days).

Definitions: An “investment” is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.  The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.  For example, we recommend that clients have a US bank account, and use it to sign contracts, leases, obtain equipment/inventory, etc.  The business should be ready to open once the visa is approved.

A “substantial amount of capital” is:

  1. Substantial in relationship to the total cost of (1) purchasing an established enterprise or (2) establishing a new enterprise

  2. Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise

  3. 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.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking, which produces services or goods for profit.  It must meet applicable legal requirements for doing business within its jurisdiction.  The enterprise is expected to eventually create several jobs to support the local economy.

Typical types of E-2 investments: restaurants, franchises, gas stations, hotels, technology Startups, retail stores, construction, fashion, and professional services.

Typical minimum investment: Approximately USD $75,000 to $450,000 (enough to support the investor’s family and the business).  This amount will vary by industry, and how much money it will take to get the business up and running.  The average investment in the business for a successful application is around $100,000.

Government Filing Fees: Approximately USD $200 to $300

Attorney’s Fees: Flat fee or hourly available for immigration work; corporate setup and business plan drafting require additional fees.  When “shopping” for an attorney, make sure that you are comparing the same services (“apples to apples”), and ask how detailed the representation will be.  The scope of attorney services varies substantially from law firm to law firm.

Think you might qualify for an E-2 visa?

The Grady Firm attorneys can assist with preparing the immigration application, business advising, and corporate setup for the new business entity.  To schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys, call (949) 798-6298, or fill out a Contact Request Form.

Want to learn about the EB-5 “million dollar visa”, which provides a path to a Green Card?  Click here.


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