E2 Visa for Canadian Investors
Requirements for an E-2 Visa for a Canadian National
E-2 visas are only available to nationals of a country that has a valid and commerce and navigation treaty with the United States. Because Canada has such a treaty with the U.S., Canadian investors qualify for E-2 visas. The next hurdle that must be met is making a “substantial” investment in a business or commercial enterprise in the United States. While the U.S. government has not set a minimum level of investment to qualify as “substantial,” the amount must be at least enough to develop the business in order for it to conduct operations. In other words, the investment must be enough so that the business will be successful. At the time of application, the investor must also have control of the funds and have committed the funds to the business or commercial enterprise. With many businesses an investment at the level of $80,000 to $100,000 will be sufficient to qualify provided the investor has an ownership percentage of 75% or greater; however, a prospective E2 Visa applicant should consult with counsel to determine the requisite investment level for their intended business as the Consular Officer will make an individualized determination based on the business in question. For more information on the specific amount of investment is required please feel free to reference our guide on E2 substantial investment here.
When reviewing an application for an E-2 visa, the Consular Officer will also look to determine if the investment is in a real operating enterprise. This means that the investment must be in a “bona fide enterprise” that is real, active, and that produces services or goods for profit. The business also must be non-marginal, which means that it make enough profit to cover more than just business expenses and basic living costs for the investor. Generally, this is demonstrated by laying out the employment of US citizens the business will maintain in order to meet the “marginality requirement” though this may also be demonstrated in certain cases by a showing that the business will earn enough money to make a significant economic contribution within 5 years of opening for business. Canadian investors who apply for an E-2 investment visa must be entering the United States in order to develop and direct the commercial enterprise or business. Applicants who are not the principal investors in the company can obtain E-2 visas if they are employed in a supervisory, highly skilled or executive position but the company must meet the requirements for E-2 Investment in that circumstance.
Applying for an E-2 Visa in Toronto
For Canadian nationals, all new E-2 visa applications and renewals are processed through the U.S. consulate in Toronto. Dependents of current E-2 visa holders and employees of companies that are already registered as E-visa companies can apply for E-2 visas at the U.S. Consulate in Calgary, Montreal, Ottawa, Vancouver or Toronto. All applicants for an E-2 visa must submit their online visa application electronically, and upload a photo. Applicants must then print out the confirmation page, which will be submitted with the application itself. The U.S. Consulate only accepts submissions in PDF format as a single attachment, which can be no longer than 70 pages and no bigger than 20MB (excluding certain documents, such as the immigration forms, tabs and dividers, copy of passport pages, and civil documents). Supporting documentation must be submitted along with the application for an E-2 visa, including a cover letter summarizing the requirements for an E-2 visa and how the applicant fulfills them, proof of nationality, ownership documents, investment documentation, evidence regarding lack of marginality and that the enterprise is real and operating. Please note that only 70 pages are provided with the intial application you will likely need to bring additional substantial documentation to the interview in order to substantiate your eligibility for the E2 Visa. The biggest corrections we typically need to make with clients for applications at the U.S. Consulate in Toronto are typically dealing with marginality and demonstrating irrevocable commitment to the business. Specifically, the investor must demonstrate that the company will not merely benefit the investor and her immediate family in order to show the business is non-marginal. The investor must also show that the funds for the business have either been substantially spent or irrevocably committed to the business and are not simply sitting in the company bank account to be retracted after the Visa is approved.
In 2019, the U.S. Consulate in Toronto is taking about three weeks to schedule the interview from submission of the E2 Visa application though this can vary. After the interview date, if the E-2 investment visa is approved, it will be returned (along with the applicant’s passport and documents) via Canadian Post Courier, typically within 3 to 5 business days of the interview. E-2 visas are valid for an initial period of up to 5 years with entry into the US at two years per entry. This visa can then be extended for as long as the E-2 status is maintained. Notably, as the E2 status is provided for two years with every entry so in total the status could theoretically be obtain for up to just under 7 years with the initial Visa approval.