E-2 visas aid in bringing foreign investment to the United States

On behalf of Mike Sethi

The Wall Street Journal has recently noted that improving access to the U.S. for foreign-born entrepreneurs has been something talked about for years. Many would like to see the creation of a new category of visa for foreigners who wish to come to America to start a business. According to Slate, a special visa designed solely for startup entrepreneurs would help grow the economy and create new jobs. Indeed, it is estimated that for each 10,000 foreign-born entrepreneur visas granted, 100,000 new American jobs would be created.

Congress has yet to act on legislation that would create a visa specifically designed to facilitate foreigners coming to America to create a startup business. Forbes magazine has observed that the E-2 visa is currently the “closest thing” to a startup visa. The investor E-2 visa is designed for entrepreneurs to start a new U.S. business and invest significant capital therein.

A prerequisite to receiving an E-2 visa is that the person seeking E-2 classification must be from a country with which the United States has an investment treaty. Further, the person seeking the E-2 visa will need to establish that they are going to be making a substantial investment in a business. As noted in Forbes, the U.S. government will want to make sure that the applicant has the funds to run a business and that it will make more money than it takes just to pay rent. One also needs to establish that the business will have a positive economic impact in the United States such as the creation of jobs and/or being innovative.

According to the Asian Journal, the E classification offers several advantages over other employment based non-immigrant classifications such as the L-1 and the H-1b. First, an immigrant may apply directly with their local U.S. consulate. Second, there are no time limits an E-2 visa holder may stay in the United States. Third, the immigrant’s dependent spouse may legally work in the United States. One negative is that the E-2 provides no clear route to a green card or U.S. citizenship.

According to the United States Citizenship and Immigration Services, certain employees of an E-2 treaty investor or of a “qualifying organization” may also be eligible for an E-2 classification. To qualify for E-2 classification, the employee of a treaty investor must: (1) be of the same nationality of the principal alien employer; (2) meet the definition of “employee” under relevant law; and (3) engaging either in the duties of an executive or of a supervisory character or have special qualifications.

Conditions of E-1 status

A treaty investor or employee holding an E-2 visa may work only in the activity approved for him or her at the time the classification was granted. An E-2 employee, however, “may also work for the treaty organizations’ parent company,” or one of the parent company’s subsidiaries, as long as the:

• Relationship between the parent company and the subsidiary is established.
• Employment with the subsidiary must involve executive, supervisory or essential skills.
• Terms and conditions of employment have not otherwise changed.

The USCIS must give approval to any substantive change in the terms or conditions of E-2 status.

Seek legal assistance

An E-2 visa applicant will need to prove the substantiality of his/her investment in the U.S. Those interested in applying for an E-2 visa should consult with a California attorney who is experienced in handling immigration cases.