THE TREATY INVESTOR VISA (E-2): IMMIGRATION LAW'S OVERLOOKED BENEFIT
by Jeffrey Ehrenpreis
A person who is not a United States citizen or green card holder must obtain a temporary work visa in order to engage in employment in the United States. While there are many different types of work visas, most require a job offer from a company in the United States. An important exception is the Treaty Investor visa, E-2. Provided that the individual is a national of a country which has a treaty with the United States that allows for Treaty Investor status, and has had prior managerial or executive experience, the individual can create his or her own work visa opportunity without a job offer from a U.S. company.
Since only prior managerial or executive experience is required, a businessperson from a treaty country is in an excellent position to obtain a Treaty Investor visa. To do so, the individual must be willing to make a substantial investment in a business in the United States, own at least 50 percent of that business, and have employees, a business lease, and a viable business plan, all of which the individual can arrange. This e-mail is intended to explain how that can be accomplished. (Please note that this discussion will not include the Treaty Investor’s sister visa category, the Treaty Trader visa, which is available to an individual who owns a company engaged in substantial trade between the United States and the individual’s country of nationality. That category will be the subject of a later e-mail discussion.)
To qualify for the E-2 visa, an individual must be a national of a country with an applicable treaty with the United States. The individual's country of citizenship determines nationality, not the country of birth. Treaty countries include most of the major industrialized nations, encompassing the United Kingdom, almost all of the Western European countries, Canada, Japan and Australia, as well as many others. Examples of countries whose nationals currently cannot obtain Treaty Investor visas include the People’s Republic of China, Brazil, and Russia.
The investment which the individual must make to obtain E-2 status is the placing of funds or other assets at risk in a business with the objective of generating a profit. The Treaty Investor must be in possession of and have control over the funds or other assets being invested. The funds must be subject to loss if the investment fails. In addition, the funds must be the investor’s personal business capital or capital secured by personal assets. The capital being invested must be spent by the enterprise or earmarked for future expenses and not withdrawn after the E-2 visa is approved. The business in which the individual is investing must be a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit.
A substantial capital investment in the business enterprise is an amount which is substantial in relation to the total cost of either purchasing an established business or creating a new business, and of a magnitude to support the likelihood that the Treaty Investor will successfully develop and direct the business. Generally, the lower the cost of the business, the higher, proportionally, the investment must be to qualify as a substantial investment. Ordinarily, an investment of approximately 50 percent of the total capital requirements of the business would meet this substantiality test. Although the regulations do not provide a specific monetary amount which constitutes a substantial investment, an investment of at least $150,000 would typically be sufficient as a minimum monetary amount, and a somewhat lesser amount might suffice as well. However, even an investment of $150,000 might not be sufficiently substantial if the capital needs of the enterprise are far greater.
An individual seeking classification as a Treaty Investor must demonstrate that he or she will develop and direct the business. The applicant must establish that he or she controls the business by demonstrating ownership of at least 50 percent of the business and by possessing operating control through a managerial or executive position.
In order to qualify for Treaty Investor status, the business may not be marginal. A marginal enterprise is defined as a business that does not have the present or future capacity to generate more than enough income to provide a minimal living for the Treaty Investor and his or her family. The projected future income- generating capacity should generally be realizable within five years from the date the individual commences the normal business activity of the enterprise.
Unlike the other non-immigrant work classifications, applications for Treaty Investor status ordinarily are initiated at an American Consulate outside the United States. While the Treaty Investor application may be filed in the United States, the approval is not binding upon the respective Consulates and an entirely new application would have to be filed when the individual first leaves the country. Therefore, it is easier to initially file the E-2 application at an American Consulate abroad. The American Consulates grant Treaty Investor visas for up to five years, although sometimes for a shorter period for a new enterprise. Even with a five year visa, the individual is only given Treaty Investor status upon entering the United States for a maximum of two year increments. Applications for Treaty Investor visas filed at an American Consulate typically take between 30 to 60 days to process, though the time estimate varies among Consulates.
For any questions regarding qualifying for a Treaty Investor visa, or whether a current investment or business venture could qualify for such status, please contact the undersigned.
Ehrenpreis Immigration Law
1880 Century Park East, Suite 550
Los Angeles, CA 90067
Phone: (310) 553-6600
This newsletter is intended for informational purposes only and should not be considered legal advice or to have created an attorney-client relationship. For legal advice, please contact our office directly.