E-2 Treaty Investor Visas

The E-2 visa allows foreign nationals of a country that has a treaty with the United States, to make an investment in a business enterprise. Canada is among the list of treaty countries. The business must be active, the investment must be substantial and at risk, and the investor must oversee and direct the day-to-day operations. The visa is valid for five years, and may be renewed indefinitely so long as the business continues to operate.

What is an active commercial enterprise?

An E-2 applicant must purchase or start an active commercial enterprise. This means that the enterprise must be offering a tangible good or service, such as a restaurant, retail store, dental clinic, etc. The enterprise cannot be passive, idle or speculative, such as real estate investment.

What is 'substantial investment'?

The regulations do not quantify or define what is considered a "substantial investment" for an E-2 visa. The unwritten rule of thumb is that the investment should be around $100,000 or more. There may be some cases where the investment is as little as $50,000.00. However, these cases usually involve businesses that act as a subsidiary to a parent company in the foreign national's home country. In these types of situations, the investor may also want to consider an L visa.

What does 'at risk' mean?

To qualify for an E-2 visa, the applicant must have already spent the money towards the startup or purchase of a U.S. business or enterprise. This is the meaning of "at risk" - the investment must be at risk of being lost of the business is unsuccessful. If an applicant had $100,000 in a bank account and tried to get an E-2 visa, it would not be at risk because the applicant has not irrevocably committed the funds towards the enterprise.

Note that if you are purchasing an existing business, you may have the purchase offer contingent on approval of the E-2 visa so long as the funds to be used are placed in escrow. If the E-2 visa is approved, the funds are transferred from escrow to the seller. If the E-2 visa is denied, the funds are returned to the applicant. This is a good way to protect yourself while still meeting the E-2 criteria.

Ownership requirements

To qualify as an E-2 investor, you must own at least 50% of the U.S. business. If you own less than 50% of the enterprise, you may still be able to work in the U.S. as an E-2 employee so long as more than 50% of the U.S. enterprise is Canadian-owned.

E-2 essential employees

If a U.S. company is at least 50% Canadian-owned, you may be able to send Canadian employees to work for the U.S. company under E-2 visas as executives, managers, supervisors or employees with essential skills.

Spouse and children

Spouses and children under 21 of E-2 investors or employees may accompany the principal applicant. Spouses are entitled to employment authorization – meaning that they can seek employment anywhere in the United States without restrictions or limitations. Children are permitted to attend school in the United States.

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