E-2 Visas: The How, When and Why
What is an E-2 Visa?
The E-2 visa is a treaty visa that allows its applicant to enter the United States and work based on an investment of the applicant’s money in a specific business venture that the applicant will take an active part in. The applicant must enter the United States with the purpose of actively participating in a business which involves the practice of qualifying activities taking place between the United States and the country of the applicant OR developing and leading the operations of an enterprise in which the applicant invested a substantial amount of money.
One of the most fascinating aspects of the United States is the number of people that immigrate every year and the different means by which one can apply for entry into the United States.
There are many different categories of visas which one may apply for when entering the United States. Some examples include: immediate relatives, family-sponsored immigrants, employment based, and diversity immigrants. For these categories, the applicant of a visa would be applying to eventually gain U.S. citizenship.
There are some categories for which non-immigrants would apply in order to gain entry into the United States such as diplomatic entry, student, or investors. These immigrants are applying solely to gain entry into the United States, but may later decide to apply for citizenship through another category. This article will discuss the E-2 visa, which involves an investor looking to gain entry into the United States, but not to immigrate.
The E-2 visa is a treaty visa that allows its applicant to enter the United States and work based on an investment of the applicant’s money in a specific business venture that the applicant will take an active part in. The fact that the E-2 visa is a treaty visa means that only applicants from countries that have a treaty agreement with the United States may apply. The list of treaty countries is extensive, but some notable exclusions are Brazil, Russia, India, China.
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This article will discuss how one obtains an E-2 visa, when one obtains an E-2 visa, and why one would obtain an E-2 visa.
How To Obtains an E-2 Visa
The first part of the discussion concerning the “how” of the E-2 visa will involve the requirements for obtaining an E-2 visa. The applicant must enter the United States with the purpose of:
(1) actively participating in a business which involves the practice of qualifying activities taking place between the United States and the country of the applicant or
2) developing and leading the operations of an enterprise in which the applicant invested a substantial amount of money. Some examples of qualifying activities include: international banking, insurance, transportation, tourism, and communications.
Substantial is defined as 1) investing at least 75 percent in a business venture costing $500,000 or less, 2) at least 85 to 100 percent investment in a venture costing significantly lower than $500,000, 3) at least 50 percent for a venture costing between $500,001 to $3,000,000, and 4) at least 30% for any enterprise costing more than $3,000,000. In other words, the percentage invested and the cost of the business are inversely related in that the lower the cost of the business, the more percentage of the cost that the applicant must invest in that business. The applicant must have control and possession of the money invested and the money must be obtained through lawful sources. Certain kinds of loans such as those secured by the applicant’s personal assets may count toward the investment, but other kinds such as from mortgage or commercial loans cannot count.
There are other notable requirements to qualify for an E-2 visa such as:
1) The investment must be substantial and sufficient enough so that the applicant can guarantee the success of the business venture;
2) The applicant must own at least half of the business venture;
3) The investment must be an active commercial or entrepreneurial venture that has a risk of failing or being put out of business. Any venture that is idle, speculative, or has uncommitted funds would not qualify;
4) The business venture must generate more income than is required to provide a living to the applicant and his family or it must have a significant impact in the United States economy;
5) The applicant must have complete control of the funds; and
6) The applicant must be entering the United States either to direct the business venture or to act as an essential employee who is employed in a leadership position or a position that involves highly specialized skill.
Once the applicant meets these requirements, they must go through a lengthy process in order to obtain their E-2 visa. The first step is to file a form DS-160, which can be completed online, and upload a photo. The photo must be in color, taken within the last six months, with the person directly facing the camera, and wearing normal daily clothing. After these steps are performed, the U.S. Embassy or consulate of the country where the applicant lives will call for an interview of the applicant. Unless the applicant is 13 year olds or younger or 80 years old or older, an interview will normally be required.
One very important step that takes place prior to the interview is to gather required documentation. This is a very important step as the immigration process required certain important documents in order to complete the process. If one looks at various federal government websites involving immigration, one will see that several immigration processes will not be complete without the proper documentation.
In the case of E-2 visas, the applicant must bring his passport, Form DS-160 confirmation page, application fee payment receipt, photo, and Form DS-156E if the applicant is applying as an executive, manager, or essential employee of a business as opposed to the owner of the business. Also, the applicant must provide documentation that proves that the funds they are investing in the business are lawful and that the venture they are investing in meets the requirements for obtaining an E-2 visa. Hence, it is important that the applicant bring in all the requirement documentation prior to the interview. Once the interview is completed, the consular officer will decide whether or not the applicant is eligible for an E-2 visa.
As part of the E-2 visa, the applicant’s spouse and any unmarried children under 21 years of age are allowed to apply for E visas to accompany the applicant or reside with him in America. The United States also recognizes same-sex marriage in that spouses of the same sex qualify under the “applicant’s spouse” portion of the E-2 visa.
The “When” of an E-2 visa
In discussing the “when” of an E-2 visa, it is important to discuss the various timing rules in effect. The two most important timing aspects have to do with the wait time in order to receive an interview appointment as well as the wait time for the visa to be processed. Each country has their own wait times for these two processes. For this article, we will use Japan as the country of the applicant and use their wait times as an example to explain the two concepts.
In Japan, the typical wait time for an interview appointment after completion and submission of all necessary paperwork for an E-2 visa is 10 calendar days. Calendar days include every day of the week even though the embassies would be closed on some of those days as opposed to working days which only include days that the embassies are open. Once the applicant receives the interview time, they must make their preparations and wait until the interview is finished for the next step. After the consular officer has made the decision to issue the visa, the typical wait time for the visa to be processed in Japan is six working days. The six days do not include the extra time needed for administrative processing which at most is two months.
The visa must be renewed every five years, but there is no limit on the number of times one can renew the visa. When the business is dissolved, acquired by another business, or falls into bankruptcy, the investor must return to his country of origin. Thus, as long as the applicant’s business or investment is successful, he can stay in America as long as he likes.
The “Why” of an E-2 Visa
There are a number of good reasons why one would decide to apply for an E-2 visa. The applicant may already have a business in their country of origin and may desire to expand it into the United States. For the business to have a strong presence in the United States, the applicant would want to stay in the United States to make sure the business runs effectively.
It is also possible that the applicant may have a lot of money but is not sure whether or not he wants to permanently live in the United States. By investing a substantial amount of money in a certain enterprise, the applicant can test drive his time in the United States to see if he wants to live there in the near future. After all, it takes a lot of hard work and determination to live a successful life in America and the applicant needs the experience of living in America before he can decide on a permanent life there. The applicant may also decide to bring his spouse and children with him so that his family can decide whether they foresee a strong future there. Perhaps the spouse or children will want to go to school there or invest in a business there in the near future.
In summary, the E-2 visa offers the applicant the opportunity to experience American life before he decides whether or not to settle down permanently. If his business or investment becomes successful, he may decide to apply for an immigrant visa and eventually gain U.S. citizenship.
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