New York Lawyer's Legal Updates

Treaty Investor’s Visa: A Way To Come And Work In The USA

Author: US Visa Attorney Alena Shautsova

Treaty Investor’s Visa

New York Immigration lawyer Alena Shautsova helps her clients to qualify for US Immigration benefits. One of the ways a person may come, live and work in the US if the person qualifies for a treaty investor’s visa. This is treaty investor’s E visa is different from an EB-5 permanent resident visa program: E-2 treaty investors do not have make million dollar investments, but rather a substantial investment in the economy of the US. But also, E-2 treaty investors do not receive a green card or permanent residence as a result of their investments, but rather an opportunity to live and work in the US for the enterprise or company they are investing in, and bring their family members. But again, E-2 will not lead to the green card directly like it in the case of an EB-5 investment.

To start with, only nationals of certain countries which entered into bilateral treaty investment agreements with the USA may qualify for this visa. For example, such countries are: Ukraine, Pakistan, Poland, and other. You can see a complete list here

To qualify for an E-2 visa, a person will have to show that there is a treaty between the countries, he/she is a national of the country-party to the treaty, applicant has invested or actively investing into an enterprise in the US; investment is substantial (as a rule, it will be at least $100k), applicant will develop and direct the business, applicant is a CEO or an essential employee of the business and that applicant will depart the US in the future. A person does not need to show a specific exit date, only to prove they have plans to return to their home country at some point in time based on the business plans. This is an important distinction because under normal circumstances, a person is encouraged to show their home residence and non-liquid assets in their home country to prove strong ties to home and alleviate doubt of becoming a permanent resident. However, when applying for an E-2 visa, if a person can show a plan of using the funds from their assets at home to develop international business relations in the future they do not need to use their personal assets to prove strong ties to their home country. Moreover, if the person has a pending or approved Labor Certification (LC) or Immigrant Visa (IV) it cannot negatively effect the outcome of their E-2 visa petition. These is just general explanation of the qualifications for an E-2 visa/status.

Typical issues would include a determination of the nationality of the business or enterprise which is determined by the nationality of its owners. 50% ownership is sufficient to meet the requirement. The applicant must be of the same nationality as the business. Further, the E visa cannot be issued just so that the applicant will earn a living in the US: it means that the enterprise must have more profits thatn just a living base salary of the E-2 beneficiary.

How much money to invest depends on the nature of the business, and within that business the investment must be substantial: a proportionality test will be used to determine if the investment is substantial. For that, a percentage of the investment vs. cost of the business will be compared. The lower the cost of the business, the higher amount is required. As such, if total investment is $100k or less, E-2 investor should provide 100% of the investment. But, it is not set in stone, and even investors with lesser investments may qualify, but their chances of approval may be lesser.

The money has to be invested at risk (must be unsecured load or collateral for loan must be form personal assets.) Mortgage debt of commercial loan secured by enterprise assets is not enough.

The source of funds will be checked to verify that they are not coming form illegal sources or activities.

A business plan is essential for a prospective E-2 investors. He/she will have to present a five year business plan, even though initially, his/her status will likely to be approved for no more than 2 years. IF E-2 visa investor does not leave ethe US during that time, he/she will be able to file for an extension of status using form I 129. For those, requesting the status from overseas, DS 160 form with supplement DS-156E will be used.

Spouses of E-2 can obtain open market unrestricted employment authorization; children are not employment eligible, but can attend school without changing their status.

As such, E-2 visa may be a good option for those who are currently in the US and would like to change their status to one that would allow them to develop their enterprise in the US; and for those who would like to invest in an enterprises in the US and live and work in the US while developing and directing these enterprises.

A person may be renewing E visa/status for as long as the qualifications are met.

If you need help with your US business visa, please call our office 917 885 2261 to book a confidential consultation.

16 August 2021
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