The E-2 Investor Visa 

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The E-2 investor visa is one of the most popular and easily obtainable work visas to the United States. The essentials are 1) a foreign national makes a substantial investment into a US company; 2) the foreign national must prove that the company will be sustainable; 3) there must be a plan to hire US workers and 4) in most cases, the foreign national must own at least 50% of the company. Unlike most other work visas, these cases are usually directly filed in US embassies outside the United States. While this may seem straightforward, the process is complex and requires substantial documentation.


Also, unlike most other work visas, the E-2 visa is not available to every foreign national. There first must be a treaty signed between the United States and another nation for its nationals to be eligible for the visa. These visas arise from a “Treaty of Friendship, Commerce and Navigation” between the United States and another country. These treaties often cover issues such as business relationships between the nationals of the two countries. Interestingly, the first such treaty established was between the United States and the United Kingdom in 1815, immediately following the War of 1812 fought between those two nations. Embedded within the treaty is the option for nationals of one country to invest in a business of the other and then enter the other country and operate the business. Currently, 80 nations have an E-2 treaty with the United States. Importantly, countries such as Russia and China do not have such treaties. Thus, their nationals are not eligible for such visas unless they are nationals of another country with an E-2 treaty with the US. So, for example, a Russian citizen who is also a citizen of Estonia would be eligible for an E-2 visa as an Estonian national. The chart below provides the details of which countries have E-2 arrangements with the US and when the treaty was established:

Treaty Countries Visa E-2:

CountryEntered into ForceCountryEntered into Force
AlbaniaJanuary 4, 1998Korea (South)November 7, 1957
ArgentinaDecember 20, 1854KosovoNovember 15, 1882
ArmeniaMarch 29, 1996KyrgyzstanJanuary 12, 1994
AustraliaDecember 27, 1991LatviaDecember 26, 1996
AustriaMay 27, 1931LiberiaNovember 21, 1939
AzerbaijanAugust 2, 2001LithuaniaNovember 22, 2001
BahrainMay 30, 2001LuxembourgMarch 28, 1963
BangladeshJuly 25, 1989MacedoniaNovember 15, 1982
BelgiumOctober 3, 1963MexicoJanuary 1, 1994
BoliviaJune 6, 2001MoldovaNovember 25, 1994
Bosnia and HerzegovinaNovember 15, 1982MongoliaJanuary 1, 1997
BulgariaJune 2, 1954MontenegroNovember 15, 1882
CameroonApril 6, 1989MoroccoMay 29, 1991
CanadaJanuary 1, 1994NetherlandsDecember 5, 1957
ChileJanuary 1, 2004New ZealandJune 10, 2019
China (Taiwan)November 30, 1948NorwayJanuary 18, 1928
ColombiaJune 10, 1948OmanJune 11, 1960
Congo (Brazzaville)August 13, 1994PakistanFebruary 12, 1961
Congo (Kinshasa)July 28, 1989PanamaMay 30, 1991
Costa RicaMay 26, 1852ParaguayMarch 07, 1860
CroatiaNovember 15, 1982PhilippinesSeptember 6, 1955
Czech RepublicJanuary 1, 1993PolandAugust 6, 1994
DenmarkDecember 10, 2008RomaniaJanuary 15, 1994
EcuadorMay 11, 1997SenegalOctober 25, 1990
EgyptJune 27, 1992SerbiaNovember 15,1882
EstoniaFebruary 16, 1997SingaporeJanuary 1, 2004
EthiopiaOctober 8, 1953Slovak RepublicJanuary 1, 1993
FinlandDecember 1, 1992SloveniaNovember 15, 1982
FranceDecember 21, 1960SpainApril 14, 1903
GeorgiaAugust 17, 1997Sri LankaMay 1, 1993
GermanyJuly 14, 1956SurinameFebruary 10, 1963
GrenadaMarch 3, 1989SwedenFebruary 20, 1992
HondurasJuly 19, 1928SwitzerlandNovember 08, 1855
IrelandNovember 18, 1992ThailandJune 8, 1968
IsraelMay 1, 2019TogoFebruary 5, 1967
ItalyJuly 26, 1949Trinidad & TobagoDecember 26, 1996
JamaicaMarch 7, 1997TunisiaFebruary 7, 1993
JapanOctober 30, 1953TurkeyMay 18, 1990
JordanDecember 17, 2001UkraineNovember 16, 1996
KazakhstanJanuary 12, 1994United KingdomJuly 03, 1815

Also, the length of the visa can differ dramatically from one nation to another. This is known as a reciprocity schedule. Because the E-2 visa flows out of a treaty, each country that participates in the program also authorizes a similar visa for US nationals to invest into and operate a business in their country. Consequently, this is known as reciprocity. For example, an E-2 visa granted to a Ukrainian national is only suitable for three months and a single entry into the United States. In comparison, a German citizen is eligible for a five-year, multiple entry visa. See the table below for the current reciprocity schedule for E-2 visa holders:

Reciprocity Table – Treaty Countries:

CountryMax TermRenewals
Albania36 MonthsUnlimited
Argentina60 MonthsUnlimited
Armenia60 MonthsUnlimited
Australia48 MonthsUnlimited
Austria60 MonthsUnlimited
Azerbaijan3 MonthsONE
Bahrain3 MonthsONE
Bangladesh3 MonthsTWO
Belgium60 MonthsUnlimited
Bolivia3 MonthsONE
Bosnia and Herzegovina12 MonthsUnlimited
Bulgaria60 MonthsUnlimited
Cameroon12 MonthsUnlimited
Canada60 MonthsUnlimited
Chile12 MonthsUnlimited
Colombia60 MonthsUnlimited
Congo – Brazzaville3 MonthsONE
Congo – Kinshasa3 MonthsTWO
Costa Rica60 MonthsUnlimited
Croatia60 MonthsUnlimited
The Czech Republic60 MonthsUnlimited
Denmark18 MonthsUnlimited
Ecuador3 MonthsTWO
Egypt3 MonthsONE
Estonia60 MonthsUnlimited
Ethiopia6 MonthsUnlimited
Finland24 MonthsUnlimited
France25 MonthsUnlimited
Georgia12 MonthsUnlimited
Germany60 MonthsUnlimited
Grenada60 MonthsUnlimited
Honduras60 MonthsUnlimited
Ireland60 MonthsUnlimited
Israel24 monthsUnlimited
Italy60 MonthsUnlimited
Jamaica60 MonthsUnlimited
Japan60 MonthsUnlimited
Jordan3 MonthsONE
Kazakhstan12 MonthsUnlimited
Korea South60 MonthsUnlimited
Kosovo12 MonthsUnlimited
Kyrgyzstan3 MonthsTWO
Latvia34 MonthsUnlimited
Liberia12 MonthsUnlimited
Lithuania12 MonthsUnlimited
Luxembourg60 MonthsUnlimited
Macedonia60 MonthsUnlimited
Mexico48 MonthsUnlimited
Moldova3 MonthsTwo
Mongolia36 monthsUnlimited
Montenegro12 MonthsUnlimited
Morocco60 MonthsUnlimited
Netherlands36 MonthsUnlimited
New Zealand60 monthsUnlimited
Norway36 MonthsUnlimited
Oman6 MonthsUnlimited
Pakistan60 MonthsUnlimited
Panama60 MonthsUnlimited
Paraguay60 MonthsUnlimited
Philippines60 MonthsUnlimited
Poland12 MonthsUnlimited
Romania60 MonthsUnlimited
Serbia12 MonthsUnlimited
Senegal12 MonthsUnlimited
Singapore24 MonthsUnlimited
The Slovak Republic24 monthsUnlimited
Slovenia60 MonthsUnlimited
Spain60 MonthsUnlimited
Sri Lanka36 MonthsUnlimited
Suriname60 MonthsUnlimited
Sweden24 MonthsUnlimited
Switzerland48 MonthsUnlimited
Taiwan60 MonthsUnlimited
Thailand6 MonthsUnlimited
Togo36 MonthsUnlimited
Trinidad & Tobago60 MonthsUnlimited
Tunisia60 MonthsUnlimited
Turkey60 MonthsUnlimited
Ukraine3 MonthsTWO
The United Kingdom60 MonthsUnlimited

In addition: some E-2 visas are subject to reciprocity fees above and beyond the normal visa fee. As an example, Australians must pay a reciprocity fee of $3,574. 

The E-2 Visa Process

There are three major ways to obtain an E-2 visa: 

  1.  Open a new company in the US and invest into it.
  2.  Buy an existing company in the US.
  3.  Be an employee of an existing E-2 approved US company.
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1. Opening a New US Company

A foreigner may form and own a US company. The two most common US companies are a limited liability company (LLC) or a corporation. In both cases, a company is formed in one of the states of the United States. For E-2 purposes, it does not matter in which state the company is formed. In fact, a company can be created in one state and have its office located in another. If this is done, then the company must register with the state in which it’s doing business.

Typically, an E-2 applicant can enter the US on a tourist visa (B1/B2) for the purpose of opening an E-2 company. The applicant should meet with a Certified Public Accountant (CPA) to obtain advice on which type of company to open. The most crucial issue in determining the type of company has to do with taxes. Regardless, the E-2 applicant must be at least a 50% owner of the company. Once the company is established, the CPA should assist the applicant in obtaining an Employer Identification Number (EIN). Once the EIN is obtained, the applicant can usually open a company US bank account.

Prior to filing the E-2 application with an embassy, monies must be transferred from the E-2 applicant into the US business bank account. The money must originate from a personal account owned by the applicant, or in the case of marriage, a joint account. It’s best if the money is transferred from the applicant’s personal account overseas. However, embassies will accept transfers directly from a private US bank account as long as the applicant is the account holder. The embassy will examine the source of the funds to determine it belongs to the applicant. The source can be from savings, from a business owned by the applicant, a gift, and even a loan as long as the loan is not secured by the new business.

A tricky issue is how much money must be invested into the business. The E-2 rules require a substantial investment, but it’s not defined. A minimum investment of $100,000 usually is recommended. But the rules specify that substantial investment is determined by a proportionality test. In other words, the investment must be substantial in relation to the value of the company. So, for example, a $100,000 investment to open a restaurant or a small shop likely is sufficient. However, that same investment probably would not be considered substantial if the applicant plans to open an auto manufacturing plant.

Probably, the most challenging part of the E-2 application process for a newly opened business is to prove to the embassy that the business is operating. For obvious reasons, the applicant rarely wants to risk spending serious money on a business prior to receiving the E-2 visa. Indeed, more contracts for goods or services that are provided with the E-2 visa application are extremely helpful. But the reality is the embassy wants to see some of that investment spent as part of the application. Spending for a leased office is accepted, but the embassy will only count the months leased up to the point of the filing of the application. Additionally, employees hired by the company and drawing wages are significant evidence of operating and spending. Also, purchases of equipment, vehicles, and equipment are beneficial.

But how does one avoid investing and potentially losing serious sums into a business before approval of the E-2 visa? The E-2 rules permit the invested sums to be placed in an escrow account to then be distributed to the sellers at the point the E-2 visa is issued. An escrow account is a third-party account that holds the invested funds on behalf of the investor. For example, let’s assume an E-2 applicant needs a truck for his new company, but he’s nervous about purchasing the truck prior to the E-2 approval. The applicant potentially can contract to purchase a truck on the condition the E-2 is approved. The embassy will accept a conditional contract as evidence of spending the investment if the money to purchase the item is held in an escrow account that is bound to distribute the money to the seller once the E-2 visa is approved. If the visa is denied, then the escrow agent is bound to return the funds to the E-2 applicant.

Often attorneys in the United States have what is called Interest on Lawyers Trust Accounts (IOLTA). These accounts are pooled trust accounts on behalf of clients. In the case of creating an escrow account for an E-2 applicant, the lawyer can hold the money in the trust account for the applicant until the E-2 visa is approved. Once approved, the lawyer distributes the money to the seller of goods or services on behalf of the client.

Especially important for investing in a newly formed business is a comprehensive business plan. The plan must contain a description of the business, how it will market itself, who are the potential competitors, who are or will be likely employees and their duties, and a five-year financial projection. Below is the table of contents of a typical business plan:

1. Executive Summary

  • Introduction
  • Our Product
  • Our Vision
  • Our Mission
  • Keys to Success
  • The Market
  • Our Target Market
  • The Objectives

2. Business Summary

  • Business Goals
  • Our Competitive Edge
  • Legal Issues

3. Company Summary

  • General
  • The Team
  • Funding Request
  • Roles and Responsibilities of the prospect employees

4. Marketing Summary

  • Marketing Plan
  • Daily Operations
  • SWOT Analysis
  • Competition

3. Adding an E-2 applicant to an Existing E-2 Qualified Business

When the initial E-2 application is made by the investor, the embassy certifies the US company as an E-2 company. Then, the embassy will issue the visa to the investor. Whatever nationality the investor uses becomes the effective nationality of the E-2 company. This means that the E-2 company can petition for an individual from the same nationality to be an employee of the E-2 company. So, for example, if the investor was Israeli, then the E-2 company is essentially an Israeli E-2 company, and thus can petition for other Israelis to join the company. These visas are limited to executives, managers and employees with specialized skills. They are not necessarily required to have been an employee with the investor’s foreign business if he had one.

Again, using the Israeli company as an example, let’s assume the E-2 company is a restaurant specializing in Middle Eastern food. The US company could petition for another Israeli with executive or management experience, particularly if that person served in one of those capacities in a restaurant. Alternatively, the company could petition for a chef with Middle Eastern food experience.

As long as the company remains a certified company with the US embassy (the time lengths differ among different countries), the procedure for filing for an E-2 visa for an E-2 employee is much simpler and quicker than filing an original E-2 case for a business. Normally, the embassy requires a letter from the US company explaining why they want this particular employee. The employer must provide up to date financial documents and a letter from a CPA, detailing the structure of the company, the ownership of the company and the nationalities of the owners. The employee must provide his bio. He/she then requests an embassy appointment, and if they qualify, they will be given an E-2 visa.

Embassy Filing vs. USCIS

Up to now the focus of the E-2 process has been filing cases at US embassies abroad. These are the natural venues for an E-2 visa. However, E-2 cases can be filed in the United States with USCIS (United States Citizenship and Immigration Services) from someone located in the US who is in legal status in the US. While most of the documentation required for a USCIS case is similar to an embassy case, the process and outcomes are very different.

Let’s assume someone entered the US on a tourist visa and decided to open an E-2 company. Rather than travel and file the case overseas, the person files a change of status to E-2 with USCIS. In this case they must file a Petition for a Non-Immigrant Worker, form I-129. Again, most of the documentation required to prove the legitimacy of the business venture that accompanies the petition is similar to that required for embassy filings. However, the outcomes are far different than cases filed in embassies. If the E-2 status is approved by USCIS, it’s limited to two years. Extensions of the status can always be filed at the end of the two-year period. However, complications arise when these individuals depart the United States for a trip. To reenter they must file a brand-new E-2 case in a US embassy abroad. Often, it takes months to schedule E-2 case interviews, and the E-2 person is stuck outside of the US until the case is processed. Also, embassy officials don’t like E-2 cases filed in the US and will give no credence to an approved petition by USCIS. The reality is these folks end up filing two separate cases, one in the US and one overseas, and waste a lot of money in the process. It’s normally recommended that E-2 cases simply be filed in US embassies abroad.

Family Members of E-2 Visa Holders

The spouse and children under the age of 21 also are eligible for an E-2 visa. The E-2 visa provides significant benefits to the spouse because he/she is authorized to work anywhere and for anyone in the US. The primary E-2 visa holder is limited to the company for which they are employed. The spouse is not so limited although they also can work for the E-2 company. Both the primary E-2 visa holder and the spouse are eligible to receive Social Security cards. Children are permitted to attend school but not to work.

Sales-$ 1,071,1300.901,600,0002,000,0002,200,0002,400,000
Sales –$ 119,8120.10250350400500
Total Revenues1,190,9421.001,850,0002,350,0002,600,0002,900,000
Cost of Sales
Cost of Sales – Products309,2060.26450000600700900
Purchase Discounts0.00
Total Cost of Sales309,2060.26450000600700000900
Gross Profit881,7360.741,400,0001,750,0001,900,0002,000,000
China, Glassware etc.7,5830.018000100001000012000
Depreciation Exp2,5590.003000400050006000
Legal Expense16,150.0120000150002000020000
Telephone Expense0.00
Merchant Fees25,8060.0230000400005000060000
Charitable Donation9,60.0110000120001500020000
Repairs & Maintenance Expense16,820.0120000220002500030000
Meals and Entertainment Exp16,70.0120000200002200022000
Office Expense8,7590.019000100001200013000
Sales Tax83,3660.0790000100000120000130000
Wage Expense79,8140.07120000150000175000200000
Travel Expense8,720.019000100001200012000
Gain/Loss on Sale of Assets0.00
Total Expenses750,5030.638600009970001,109,0001,191,000
Net Income$ 131,2330.11540000753000791000809000

2. Buying an Existing Company in the US

In some ways buying an existing company in the US makes the embassy application process simpler. Because it’s an existing company, there is historical record of operation, and normally employees are already on the payroll. There are different ways to buy companies. The E-2 applicant can buy the company outright by purchasing its shares or becoming a member of an LLC. As long as the applicant becomes a 50% owner, then he can use the business purchase as the basis of the E-2 application. In addition, unlike starting a new company where the value of the company can only be projected, the E-2 rules state that the purchase price determines the company value. Again, it must be a substantial investment, so purchasing a business for $10,000 and not investing anymore into the company will unlikely pass the substantial investment test.

Alternatively, the E-2 applicant can open a new company and purchase the assets of an existing business. Unlike an outright purchase where the existing business continues under new ownership, an asset purchase means the new company must still prove its sustainability through an extensive business plan. For instance, an E-2 applicant wants to open a restaurant and thus buys the assets and equipment of another restaurant. The business plan must show how the new restaurant will succeed and to detail its plans for the future.

Where the E-2 applicant buys a company, the embassy will require extensive documentation on the current company’s operations. These include US tax returns, W-2 and 1099 forms for employees and contractors, extensive financial statements, leases, brochures, existing contracts with suppliers, bank records and more.

Once the E-2 applicant has either opened a new company or purchased an existing one, he/she must file a case with a US embassy. Different embassies have different rules regarding format and presentation. But in all cases the applicant must 1) be a national of a country that has an E-2 treaty with the US; 2) provide organizing documents of the US business; 3) provide a CPA letter describing the organization of the business and identify the owners and their percentage of ownership and nationality of the owners; 4) prove the investment of substantial income has been transferred from the E-2 applicant to the US company account; 5) provide invoices of spending; 6) provide contracts for work; 7) and prepare a comprehensive business plan and the basic application for the E-2 visa.

Following the submission of the file, the US embassy will arrange an interview for the applicant sometime later. The applicant must expect to be questioned extensively about his/her filing, including answering questions about the business, the likelihood of success, where the investment originated from, the accuracy of the business and financial projections and his/her own experience. If approved the visa will be granted shortly after the interview. Regardless of the length of the visa, upon entering the United States, the E-2 visa holder will be given E-2 status in the US for two years. This period can often be extended by departing and reentering the US during the two-year period as long as the visa remains valid.

E-2 to Green Card

Unlike some other work visas to the US, specifically L-1 and H-1B visas, the E-2 visa does not naturally convert to a green card. But all is not lost. There are ways to go from an E-2 visa to a green card.

EB-5 Investment Visa

Often an E-2 applicant invests a lot of money into his E-2 company. If the investment amount grows, he potentially can apply for an investment green card, known as EB-5. The EB-5 rules currently are in a state of flux, but at this time if an investor invests $1 million in a business he owns, he may be eligible for a green card. The amount required drops to $500,000 if the business is located in an area of high unemployment. Other than the amount of the investment the other critical issue is to show that the investment will lead or has led to the hiring of ten full time employees over the next two years. To prove this the EB-5 petition must be accompanied by a very comprehensive business plan. Unlike most E-2 cases, the EB-5 petition is filed with USCIS in the United States. Currently, these applications take at least one and one-half years to process. If successful, the EB-5 process can lead to green cards for the whole family. Alternatively, the investor can invest in a business that he does not own. The rules for investment amounts and the need to prove the hiring of ten employees remains the same.

Alternatively, the investor can invest similar sums into a Regional Center project. These are large projects that invite multiple EB-5 investors to participate. These projects can include hotels, entertainment centers, commercial buildings, etc. There are numerous such projects around the United States. In these cases, the investor becomes more of a passive investor as opposed to one managing his own business. Normally, the funds invested will be returned to the investor after several years. During that period the investor can receive his/her green card. Currently, this program has not been reauthorized by Congress, but it should within a few months. In addition, it’s highly likely the investment amounts for both the direct investment into an EB-5 project and a regional center will increase.

PERM Green Card

As was mentioned previously, the spouses of E-2 visa holders also receive an E-2 visa, but unlike the primary visa holder, the spouse can work anywhere. The spouse’s employer may want to offer a permanent position to the spouse, and thus can petition for the spouse’s immigration based on the PERM (Program Electronic Review Management) system. The same can be true for the primary E-2 visa holder, but rarely can the E-2 company be the petitioner. Rather, another employer would need to file this process for the primary E-2 visa holder.

The PERM system requires the employer to file a labor certification with the US Department of Labor ensuring that no qualified US workers applied for the position. This is quite involved. First, the employer must determine the prevailing wage for the offered position. This wage is obtainable only through a Prevailing Wage Determination by the Department of Labor. Just this process alone takes several months to receive an answer.

Once the prevailing wage is determined, the employer must advertise for the position through multiple venues, including the state employment agency, local newspapers, ethnic newspapers and a variety of other sources. The employer must review all resumes sent by employment candidates and determine which ones appear qualified for the position. Those candidates then must be interviewed by the employer. If the employer concludes that no candidates were qualified, he must explain in written form why that is the case for each candidate. Following the advertisement and interview phases, the employer files the labor certification, essentially arguing that there were no qualified US workers who applied for the position. The types of advertisements required and the timing of the advertising is very specific. Anything missing from the advertisements or the advertisements were not placed in the correct venues or for the specified periods of time will cause the Department to deny the petition.

Once the Labor Certification is approved, the employer can then petition for the immigration of the individual. If immigrant visas are current for citizens of the immigrant’s native country, the immigrant may file an Adjustment of Status for themselves and their whole family to a green card at the same time. The Adjustment of Status process is the process of converting E-2 status or any other legal status to that of a green card. Typically, applications for work authorization and a travel document will accompany the Adjustment of Status petition. This process can take approximately a year or more depending upon where the immigrant lives. Eventually, the immigrant and his/her family will be called for a green card interview by USCIS.

National Interest Waiver

The national interest waiver is a means for an E-2 visa holder to apply directly to USCIS for a green card without the necessity of needing an employer sponsor and the PERM Labor Certification process. The first step to obtaining such a waiver is the person must have either an advanced degree (Master’s or above) or be a person of exceptional ability. The second step is the person must meet three conditions: 1) the applicant must show what he/she intends to do has substantial merit and in the national interest of the United States; 2) the applicant is well-positioned to pursue their intentions; 3) on balance it would be in the national interest of the United States to waive the usual employment and labor certification requirements.

The documentation requirements for the national interest waiver are very significant. But if the E-2 visa holder has built a strong business in the United States, they very well may be eligible for such a waiver. In such a case they can file directly to USCIS for immigration and Adjustment of Status, as explained above.

Family-Sponsored Green Card

If the E-2 visa holder has a close family relative who is a US citizen or even a green card holder, the relative can apply for a green card for the E-2 visa holder under family immigration. Eligible relatives are US citizen children aged 21 or above, a US citizen or green card spouse, a US citizen or green card parent, or a US citizen brother or sister. Depending upon the type of relative the process for family immigration can be fairly quick, as in the case of a US citizen child, or very long, as in the case of a US citizen sibling.

In the End

The E-2 visa process is a complex one, but it can lead to a whole new life in the United States. We at Cohen and Brosh Law Offices have years of experience at successfully prosecuting E-2 visas for clients. Contact us to begin this new adventure! 

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