NPZ Immigration Law Blog

The nonimmigrant E-2 visa for treaty investors has as its underlying policy the aim of incentiving foreign nationals to come into the U.S through business investment. This investment could either consist in creating a new company, buying an existing one or purchasing a franchise. Also, this company can have a foreign national come and work in a managerial or executive position under an E-2 visa as an “Essential Employee”, provided that this employee holds the same nationality as the organization (i.e. as the majority owner of this company).

In order for this E-2 investor’s or employee’s visa to be granted, the company will have to demonstrate to the United States Immigration Services (USCIS) or to the U.S. Department of State (DOS) that it complies with several requirements by providing substantial documents and information to the governmental organization adjudicating the case.

First, the foreign E-2 applicant must be a national from the country that maintains a Treaty Agreement with the United States. This particular point, although mandatory, will usually be the easiest one to prove as the nationality will be established by providing the Treaty Trader’s and Employee’s passport and proof (readily available from government sources online) that a Treaty exists between the U.S. and the foreign county.

Then, the investor must demonstrate that the company is real and functioning, and that it is not “marginal”. Additionally, the applicant must show that “substantial” investments have been made and that those funds have been “irremediably committed” to the business. Each of the aforementioned phrases have legal significance and must be proven as part of the case submitted to the government for adjudication.

The “real an existing” aspect of this criteria will asserted via the official corporate documents of the company (bylaws, certificate of incorporation, etc), and Internal Revenue Service (IRS) information and/or tax returns and employees’ payroll if applicable. Those, along with other financial documents, will allow the Investor to demonstrate that the company is not “marginal” (although this aspect will also be exposed in the business plan). The issue of “Marginality” is somewhat subjective but overall it is guided by a commonsense approach. A business that needs assets to run will need to have those assets.

The company also has to be actually running when the E-2 Visa application is submitted. The investor can prove the functioning of the company by providing invoices issued to the clients, marketing material, etc. Other ways to show the business is running or has a very high likelihood of success is to receive letters from organizations that will work with the organization once its business operations are “off the ground”.

The criterion regarding the “substantiality” of the investment is the one that will be tailored according to each organization. There is no minimum requirement as of the amount of investment necessary, and that amount will be evaluated by the USCIS and/or the DOS with regard to the general cost of living in the considered area. The important aspect will be to demonstrate that the investment is consistent with what is necessary to run the business (lease, computer, supplies, etc.). This particular requirement can be met for example by providing an escrow account statement showing that the funds are committed (when buying an existing business), or by showing bank account statements for the company showing incoming wires. The origin of the funds will also have to be assessed, in order to establish the legality of their provenance. This analysis is referred to as the “source of funds” evaluation and it continues to be a critical aspect of the E visa inquiry.

Finally, the investor will have to be in a “managerial” position within the considered. The Organization. The Treaty Investor usually demonstrates that he or she meets this requirement by providing the stock certificate or membership certificate demonstrat ownerships of at least 51% of the shares of the organization. Also, he or she will have to convince the consular or the immigration officer that he or she has professional skills and qualifications to conduct and manage the considered business. It should also be noted that the description of the applicant’s managerial position within the organization will be even more crucial for an E-2 “Essential Employee”.

Therefore, close attention will have to be given to the description of the proposed transferee’s duties in the organization, as well as the individual’s background (both academic and experiential) by way of a close analysis of the relevant diplomas, descriptions of professional credentials, and a demonstration of the particular need to hire this specific person for the proposal position.

An E-2 Visa application is very focused and bound tightly as it commits the Applicant’s funds as well as the formal development and implementation of a professional career plan. The counsel and assistance of and experienced Immigration Lawyer and/or Immigration Attorney fully familiar with the E Visa classification and its associated nuances is strongly recommended to optimize the chances of E Visa success!

Nachman Phulwani Zimovcak (NPZ) Law Group is an immigration law office with offices in New York, New Jersey, Indiana and with affiliated offices in Canada and in India. We assist our clients with all U.S. and Canadian immigration and nationality matters on a routine basis with great success. We also assist our clients with 221(g) issues at all U.S. Consulate Offices abroad. For more information, or to speak to one of our immigration and nationality lawyers or attorneys, please feel free to e-mail us at info@visaserve.com or to call us at 201-670-0006 (x107).