E-2 Treaty Investor Visa

The E-2 non-immigrant visa is also called the E-2 Treaty Investor visa. Foreign investors that are guided by lawyers who understand the rules for these E-2 Treaty Investor visas will find that the E-2 visa process can be a rewarding endeavor. Lawyers in our firm’s San Francisco immigration department regularly submit E-2 visa petitions and carefully study USCIS publications and rules for Treaty Investor petitions. As a result of that experience and ongoing analysis, during the past two decades Luscutoff, Lendormy & Associates has been very successful with E-2 visa petitions.

Over eighty two (82) countries have entered into a treaty with the United States which qualifies nationals to apply for an E-2 nonimmigrant visa, i.e. a Treaty Investor visa.

The following requirements must be met to qualify for the E-2 Treaty Investor status:

  • A Treaty of Friendship, Commerce, and Navigation or a Bilateral Investment Treaty must exist between the U.S. and the country of nationality of the treaty investor.
  • The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by nationals of the treaty country).
  • The individual or the company has made or is in the process of making a substantial investment in a business in the U.S.
  • The individual is either the principal investor, who will direct and develop the enterprise, or an executive, manager or employee with special skills essential to the company.
  • The investment is not the individual’s sole income source.

Visa Based Investment Requirement Luscutoff, Lendormy & Associates works carefully and closely with E-2 visa petitioners to navigate carefully through all of the USCIS rules. The investor seeking a U.S. E-2 Treaty Investor visa must make a commitment of monies that represents an actual and active investment. Although skillful presentation of the facts and financial information is critical, accounting games don’t pay off. The experience of our San Francisco immigration department lawyers is that so-called financial “smoke and mirrors” attempts are easily penetrated on these visa petitions.

Real is real. The funds invested must be truly “real” and must be “at risk”, meaning that the investment could potentially yield partial or total loss if the investment is unsuccessful. Planning Idea: If the investment includes funds from a loan, the loan must be secured only by the investor’s unsecured personal assets or unsecured business capital, indicating that the investor must be personally liable if the business fails.

As you might imagine, the US law requires that the E-2 treaty investor’s underlying investment must represent a real operating business or enterprise, capable of producing a service or commodity. The investment must be substantial, taking into account only those financial transactions in which the investor's own resources are at risk. The USCIS and other regulations do not specify the amount of money to be considered “substantial,” but they do specify that the investment should be substantial in relationship to the capital required to start such a business.

A successful E-2 visa petition carries with it many benefits including an extended right to stay in the United States. There are extended limits on the duration of stay for foreign nationals who continue to maintain his or her E-2 treaty investor status. The visa is issued for potentially unlimited periods of time which are really only dependent upon the reciprocity schedule of the treaty country. But the particular treaty, if it changes, could well change the allowed period of stay.

However, as a general rule, as long as the company and the foreign national continue to qualify under the treaty trader visa provision and the foreign national is maintaining his or her status, he or she may remain in the U.S. for an indefinite period of time. Nevertheless, E-2 visas are temporary visas. Because of that the E-2 treaty investor must intend to actually leave the United States when his or her status terminates.