Unlocking American Dream: How the E-2 Visa Offers a Flexible Pathway for Global Entrepreneurs and Their Families

March 25, 2024
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The E-2 visa provides one of the most flexible employment-based opportunities for international entrepreneurs, setting itself apart from other employment-based categories known for their rigid procedural requirements.  A significant benefit of obtaining an E-2 visa is the absence of restrictions on extending the stay. Additionally, E-2 visa holders aren't required to maintain ties with their country of origin. Another advantage is that there is no fixed minimum for the investment amount. E-2 Visa holders can also bring their families to reside in the U.S. The spouse of an E-2 Visa holder can obtain a derivative status, and their work authorization is incidental to their status.  Children of the E-2 Visa holder can attend school in the U.S. without needing a separate student visa. The basic E-2 Visa requirements for Treaty Investors are as follows: 1)  Existence of Requisite treaty (2)  Individual and/or business possess the nationality of the treaty country (3)  Applicant has invested or is actively in the process of investing (4)  Enterprise is a real and operating commercial enterprise (5)  Applicant's investment is substantial (6)  Enterprise is more than a marginal one solely for earning a living (7)  Applicant is in a position to "develop and direct" the enterprise (8)  Applicant is destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United; and (9)  Applicant intends to depart the United States when the E-2 status terminates ( Investors can purchase an existing business or invest in a start-up. For example, buying a franchise can be a good option for an E-2 visa investor.  An escrow arrangement can be used to ensure that the funds have been sufficiently committed.   The investor can also use lease payments, equipment invoices, legal fees, incorporation fees, and marketing fees to show that the funds have been spent on the business. The investor must demonstrate that the investment is valid.   The funds must come from legitimate means and should not be acquired through illegal activities such as theft, drug trafficking, or other unlawful means. What does it mean for an investment to be considered substantial? This question often arises in the context of qualifying for an E-2 visa. Although the regulations do not specify a minimum amount, adjudicating officers evaluate the investment's size relative to the business's costs, a method known as the proportionality test. Consultancy businesses, for example, may find this test challenging to meet due to their typically low start-up costs. Furthermore, the investment cannot be marginal. The company must generate income significantly beyond what is required to support the investor and their family. Alternatively, it should have a considerable impact on the U.S. economy. Investors are advised to include a detailed business plan in their application. This plan should encompass a market analysis and a five-year financial projection, demonstrating how the business will be profitable and impactful. Edyta Salata, Esq. Attorney at Law

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