Clay and Porter Solicitors provides a tailored, high-level service for UK nationals requiring the E2 visa. If you are looking to establish or invest in a business in the US, the E2 visa may be your best option.
“Thank you for putting together my application and the awesome business plan, the interview at the US embassy went smoothly”
The E2 Investor Trader visa offers individual holders temporary permission to come to the US either to set up or invest in a company.
Before any individual application can be made for an E2 visa, your company must first apply to be registered as an E2 treaty investor business.
You must also have already made investment in the US business prior to your E2 visa application – with no guarantees of success. This means professional advice is crucial to optimise your application for US entry clearance.
Clay and Porter Solicitors are here to help!
The application rules for the E2 visa program are complex and cumbersome. The E2 visa is particularly demanding in its eligibility criteria and requirements for supporting documentation, including submission of financial investment information and a solid business plan.
We will help you navigate the entire process and together present a solid application to the US Consulate
Who is eligible to apply for an E2 visa?
Investors from one of the treaty nations intending solely to ‘develop and direct’ the company would be eligible to apply for an E2 visa.
In addition, following successful completion of the E2 company registration process, you will be required to seek visas for ‘sponsored employees’ – individuals you wish to employ at your US company.
To be eligible, sponsored employee applicants must:
- have the same nationality as the owners of the foreign company;
- be filling an ‘executive, managerial or essential role’ at the US company – as detailed in the E2 company supporting documentation;
- intend to return to their residence abroad following completion of their work in the US; and
- if they are UK citizens, present evidence of their residence in the UK.
The employees must apply for E2 status at the consular post where your E2 registration application was filed and should expect to be invited to interview to discuss their application and specifically to demonstrate requisite managerial level experience or essential skills.
What does an E2 visa allow a holder to do?
The E2 visa is a non-immigrant visa (NIV), which means the holder is granted temporary permission to live in the US, to set up or invest in a US company.
The maximum period of stay is five years, although the final decision will be determined by your nationality and the discretion of the consulate approving your application.
E2 visa holders have permission to travel in and out of the US without restriction.
How does a foreign company apply for E2 company registration?
Before you can apply for an E2 visa as an individual applicant, your company (non-US) must first be registered as an E2 Treaty Investor Business.
An application evidencing the foreign company’s eligibility must be filed at a US consular post abroad, along with an initial E2 employee visa application.
Filing requirements vary from post to post, and processing times can fluctuate based on consular workload.
It is best to confirm estimated processing times at the appropriate consular post at the time the E2 company registration and visa applications are filed.
To be eligible for company registration, the following key requirements, among others, must apply:
- The foreign company must be owned and controlled at least 50% by individual nationals of a treaty country (see below).
- The foreign company must be investing in a new or existing enterprise in the US. In practice this could mean establishing a new business venture or purchasing a pre-existing business.
- The company cannot be an idle investment held for potential appreciation in value. For example, investment in undeveloped land or shares by an investor who has no intent to direct the enterprise would not meet the criteria.
- You must demonstrate that risk capital has already been committed by you as the applicant investor, and that the invested capital is subject to partial or total loss in the event that the entity fails. For example, by providing evidence of a lease on commercial premises for your business.
- The foreign company must demonstrate that the capital invested is irrevocably committed to the enterprise and primarily derives from corporate earnings.
- The invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the relevant type of enterprise.
- The foreign company must be in possession of the funds it will invest, and the funds must be fully committed to the business.
- The foreign company must show a clear and legitimate path regarding the source of capital it will be investing.
What are the key criteria to be considered for E2 investment?
The formal requirement is that there has been and will be a ‘substantial investment’ in a US enterprise.
A substantial investment is one that is sufficient to ensure the investor’s commitment to the successful operation and development of the enterprise by its proportion to the total cost of the business.
If the company is an ongoing concern in the US, then the focus will be the actual revenues that the business has achieved, and the number of jobs created in the United States.
In the absence of prescriptive direction, we are able to advise on what the authorities require in a successful application.
Some key points to consider include:
- Property investment does not count as part of the E2 investment requirement. The investment must be made in a trading business with employees – not stocks or property.
- Expenditures already incurred can be included in the investment calculation. This could encompass a broad range of expenditure and outlay, from travel, sales and marketing to equipment purchases and a range of other expenses.
- The investment cannot be marginal and must have the capacity to generate more than a minimal income.
- The investment should result in employment for US citizens.
What evidence and documentation will I need to include in the E2 visa application?
In order for a foreign company to be granted E2 registration as a treaty investor, it will necessary to gather documentation evidencing that each requirement has been met.
Such documentation would include, among others:
- evidence of the nationality of the foreign company;
- evidence of the trail of investment from the foreign company to the US company, and usage of such funds to develop the enterprise;
- evidence that the US company is, or soon will be, a real and operating enterprise;
- if the foreign company is investing in an operating business, evidence that the business is more than marginal; and
- if the foreign company is investing in a startup, evidence that the business will be more than marginal.
What is the E2 visa business plan?
Your application for an E-2 visa also requires submission of a formal business plan.
The plan should detail your projections for the business, and how your E-2 investment is going to be utilized to make the business operational and successful in meeting your growth targets.
Will there be a visa interview?
Four to six weeks after submitting your application and business plan to the US Embassy, you should expect to be invited to attend an interview.
You will be questioned on the information you have provided about yourself and the business in your application and business plan.
It will be important to prepare well for the interview, to be familiar with the detail of your submissions and to answer any general questions for example about your immigration history and education and work background. The business plan will also be scrutinized to ascertain the degree of economic benefit your business would bring to the US market.
Can I bring my family or other dependents with me as an E2 visa holder?
The spouse and children of an employee granted an E2 visa may apply for E2 visas, which will allow them to reside with the employee in the US.
Dependent visa applications may be made at the time of the E2 employee’s interview, or by scheduling a separate interview at a US consular post following approval of the E2 employee’s visa application.
Once in the US in E2 status, an E2 employee’s spouse may apply for employment authorization which will allow them to work legally in the US for any employer.
Can I renew my E2 visa?
E2 company registrations are renewable indefinitely (for up to five years at a time), provided the foreign and US companies continue to meet E2 requirements.
E2 visa applicants should apply to extend their E2 visa before expiry of their current grant of leave to maintain continuity of status in the United States. However, they must demonstrate as part of their renewal their continued intent to return to their home country following completion of work in the US.
There are additional factors to take into consideration when applying to extend, including the requirement to provide specific documentation to accompany and support your renewal application. Take professional advice on your specific circumstances.
Which are the E2 Investor visa countries?
The owners of the foreign company must be nationals of a country that has a treaty of commerce with the United States, or a country designated by Congress as eligible for participation in the E-2 non-immigrant visa program.
If you are a national of another country, there may still be alternative entry options available to you, depending on the nature and required duration of stay. Take advice on your particular circumstances.
Even if you have satisfied the treaty investor visa requirements, the maximum possible duration of the E-2 visas will be dictated by your country of origin. For example – for UK citizens, the maximum is five years, but for Mexican nationals, it is 12 months. Some countries operate under a maximum of 3 months stay (e.g. Egypt, Jordan).
Looking specifically at the treaty between the US and UK, E-2 classification requires that UK citizens reside in the UK at the time they apply for their E-2 visa. You will need to evidence that UK residence has been maintained through for example maintaining a job and home in the UK.
What if my E2 visa application is refused?
If your application is rejected, you will be informed by letter.
The letter will identify the grounds for refusal. On this basis, you may wish to seek professional advice on your options to either petition or to reapply.
Can I apply for a US Green Card with an E2 visa?
An E2 visa does not provide a path to permanent resident status but options may be available to you depending upon a number of factors, including whether you continue to operate an overseas business or have extraordinary achievements, awards or recognition