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The E-2 Visa was designed to grant foreign nationals U.S. entry for the purpose of fostering business and the U.S. economy.  Depending on factors like your country of nationality, the scope of your investments in U.S. enterprises, and the extent to which you control those enterprises, you could be eligible to obtain an E-2 Visa through the help of an E-2 visa attorney.  In this article we’ll explain the E-2 Visa eligibility requirements, including the list of treaty countries approved by USCIS, bona fide enterprises, and substantial versus marginal investments.

Which Treaty Countries Are Eligible for E-2 Visas?

Although the E-2, L-1, and EB-5 all generally involve investment in the United States, investors must bear in mind several significant distinctions between these visas’ objectives and requirements.  The L-1 Visa, for example, is designed to facilitate inter-company transfers involving executives and managers, while the EB-5 Visa is oriented toward promoting U.S. job growth through investments in new commercial enterprises. The E-2 Visa likewise is designed to stimulate the U.S. economy through investment by a foreign national, though unlike the EB-5 Visa there is technically no job growth requirement. If you’re unsure about which visa best fits your employment or investment situation, the immigration attorneys of Colombo & Hurd can help you navigate your options.  If the E-2 Visa still seems like the most appropriate visa for your circumstances, it’s time to examine the five basic E-2 eligibility requirements set forth by USCIS, or U.S. Citizenship and Immigration Services. USCIS’ first requirement states, “As a treaty investor, you must be coming to the United States to invest in a new or existing enterprise.”  There are really two components to this single requirement.  First, in order to be considered a treaty investor, you must be either a national or citizen of a country which has formally entered a “bilateral treaty of commerce and  navigation” with the U.S.  The U.S. State Department has the most up-to-date list of the treaty countries that you can reference here. The investment itself must be channeled toward either (1) helping to found a new business, or (2) buying an existing business.  Additionally, the investment must be deemed “substantial,” which we will address in detail later on. For the time being, let’s look at the next USCIS requirement: “Your investment must be in a bona fide enterprise and may not be marginal.”  What does that mean?

>> Related Content: Can an E-2 Holder Apply For A Green Card?

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How USCIS Defines Bona Fide Enterprises and Substantial Investments

Under 8 CFR 214.2(e)(13), a “bona fide enterprise” is one which is “real [and] active,” and which tangibly, demonstrably “produces services or goods for profit.” This means USCIS will not accept business blueprints, plans, pitches or projections alone. While there are no hard financial thresholds or tables to follow — an ambiguity which often leads to confusion — in general terms a “marginal” investment is one which yields just enough profit to cover basic living and business expenses.  To escape this classification and pass the Marginality Test, in accordance with 8 CFR 214.2(e)(15) the business must earn enough money to “make a significant economic contribution,” such as creating jobs or donating to charities, ideally within five years of opening for business.  In order to prove to USCIS that your enterprise is both bona fide and non-marginal, you will have to submit documents such as tax returns, bank statements, and payroll summaries where applicable. To pass the third requirement, “You must be in possession of the funds you will invest and the funds must be committed to your business.”  Tentative, hypothetical, and noncommittal loans are unacceptable and will not pass USCIS’ E-2 Visa criteria: funding for the business must be guaranteed to be in place, which you can potentially prove with documents like leases or stock purchase agreements. Such funding must also be considered “substantial,” which brings us back to the question of what substantial means in practical terms.  As with the term “marginal,” unfortunately there is no single dollar amount to which investors can easily refer. However, 8 CFR 214.2(e)(14) provides several gauges for better clarity.  For example, the amount of funding must:

  • Be proportionally substantial compared to the overall cost of launching or buying the business.
  • Guarantee at least the possibility of successful operation (and the investor’s dedication to such operation).

The fourth criteria holds that you “must be able to provide the source of your funding.”  Toward that end, you will have to submit documents such as tax returns and loan agreements to USCIS for review. Finally, you “must be coming to the United States to develop and direct the enterprise.”  You may satisfy this criteria by proving that either:

  • You own a minimum of 50% of the business.
  • You control the entity’s daily operations.

E-2 Visas have allowed countless investors to achieve commercial success in the United States.  However, understanding and complying satisfactorily with USCIS’ complex eligibility requirements can be a challenge.  The experienced Orlando immigration lawyers of Colombo & Hurd can help you explore your investor visa options and guide you through the application process, including legal issues pertaining to change of status and visa denials.  To arrange for a private consultation, call our law offices right away at (800) 659-7142.

Rusten Hurd

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