E-2 Treaty Investors: Closer Look at the Requirements

The E-2 treaty investors visa is a nonimmigrant visa available to foreign nationals from certain treaty countries who make a substantial investment in a U.S. enterprise. The E-2 visa does not provide a path towards permanent residence but does allow the foreign national to live and work in the U.S. for an indefinite period of time. The E-2 visa also provides options for hiring foreign employees from the qualifying treaty country, permits the spouses of beneficiaries to work in the United States, and allows children to attend public school.

The E-2 visa has several general requirements to qualify:

• The foreign national must be a national of a country that has a qualifying treaty with the United States. There are currently 78 countries with such a treaty. The full list can be found on the U.S. State Department’s website.
• The foreign national must have invested or be actively in the process of investing at the time the application is filed. The requirement for active investment has been interpreted to mean that the investment is “at risk.” Generally, for the investment to be considered at risk, it must be subject to partial or total loss. Therefore, the money must be committed to the business and not immediately accessible by the foreign national. Money sitting in an account, even a business account, would not suffice.
• The investment must be substantial. An exact amount is not defined by regulation; rather, the amount is determined by what is required to ensure the successful operation of the business, by weighing the amount invested against the cost of running the business. This is referred to as the proportionality test. What is considered substantial will depend on the nature of the investment and the business.
• The business must not be marginal. A marginal enterprise is one that does not have the capability to generate sufficient income, now or in the future, to provide more than a living wage for the investor and their family. Generally, USCIS prefers to see evidence that the business will generate a profit and have employees within five years of the initial investment.
• The foreign national must be in a position to develop and direct the enterprise. This may be demonstrated by showing that the investor owns at least 50 percent of the enterprise.

Investors must have, and be able to demonstrate, the intent to depart the U.S. upon the termination of their visa status. Unlike with other nonimmigrant visas, the E-2 investor only needs to express an unequivocal intent to depart the United States. They are not required to maintain a residence in a foreign country and may fully relocate to the United States.