Foreign investors who invest in a substantial amount of capital in a US enterprise, and who will develop and direct the enterprise, may apply for E2 visas if their country of citizenship has the required treaty with the US.
If the investor is inside the US, he or she may apply to the US Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service) for a change of status, extension of stay, or change of employment. The E2 category does not require a petition for employment if the investor is outside of the US. In that case, the investor may apply for the E2 visa on his or her own behalf directly to a US consular office abroad.
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
The visa application must be filed with evidence that:
1. The investor is a national of a country with whom the USA has the requisite treaty or agreement;
2. The applicant (or in the case of an employee of a treaty investor who seeks classification as an E2, the owner of the treaty enterprise) will direct or develop the enterprise. The applicant must demonstrate that he or she controls the enterprise by showing ownership of at least 50 percent of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
3. The investor has invested in or is actively in the process of investing in the enterprise;
4. The investment is substantial, i.e. sufficient to ensure the investor's financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
5. The investment enterprise is not a marginal enterprise;
6. If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify; and
7. That the applicant intends to depart the United States upon the expiration of E2 status.
Spouses and unmarried children under age 21, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Family members may be students in the US while remaining in E2 dependent status and spouses may apply for work authorization with the USCIS.
Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise.
To consult an immigration lawyer regarding the E2 Investor Visa, please call us at (212) 947-7534 or e-mail us at: Michael@mmlawnyc.com . An attorney in our office would be happy to assist you.