The Law Office of Natalia Malyshkina                          

BUSINESS IMMIGRATION AND NATIONALITY LAW OFFICE                                  

San Francisco Office: 100 Pine Street, Suite 1250, San Francisco, CA 94111                     

Silicon Valley Office: 750 Menlo Avenue, Suite 200, Menlo Park, CA 94025       Call us today (415) 240-0083

 
 

E2 investor visa


The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Please note that E2 visa requires less capital investment than EB5 visa. EB5 visa requires $500,000 to $1,000,000. E2 visa requires a “substantial amount”, which will differ depending on a company you plan to invest to. We recommend a minimum of $40,000 or intellectual property, such as patents, or software, or other assets which will be used by the US business.

For a current list of countries with whom the United States maintains a treaty of commerce and navigation see U.S. Department of State's Treaty Countries at https://travel.state.gov/content/visas/en/fees/treaty.html.

Most European countries signed the treaty. The visas are popular among citizens of Ukraine, Moldova, Italy, Spain, UK, France, Kyrgyzstan, Latvia, Poland, Sweden Turkey, Mexico and other countries.

Some large countries, such as Russia, Brazil, China (mainland), India did not sign this treaty and are not eligible for this visa.

The E-2 classification may be granted to an individual who:

·       Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;

·       Is seeking entry solely to develop and direct the enterprise; and

·       Intends to depart the United States upon the expiration or termination of E-2 status.

Obtaining a green card while on E2 visa is possible. However, this is a nonimmigrant visa. There is no direct transition from E2 visa to green card (such as when you work with EB5 investor visa).

Transitioning from E2 visa to green card is usually possible after the company you invest to is well established and you may have to go through PERM process, or ask for a waiver based on extraordinary ability or National Interest Waiver.

USCIS checks all petitions and applications filed for this classification in the Validation Instrument for Business Enterprises (VIBE) system. VIBE uses commercially available data to validate basic information about organizations requesting to employ foreign workers. For more information about this program, please visit USCIS website at www.uscis.gov/VIBE.

General requirements for a E-2 Treaty Investor Visa Application

Please note: the following information is fairly technical. Your attorney will help you navigate the requirements. The Law Office of Natalia Malyshkina will be happy to help.

Translations

All foreign language documents must have a complete English translation to establish eligibility.  For USCIS to consider the evidence, you must submit the English language translation(s) for all the document(s). In addition, the translator must certify that:

·       The translations are accurate and complete;

·       He or she is competent to translate from the foreign language into English.

Form I-l29

You will submit Form I-129 and supplement.

General Requirements for E-2 Treaty Investor

To qualify for E-2 classification, you must show that you:

·       Intend to depart when your E-2 status ends or is terminated;

·       Are a national or citizen of a country with which a qualifying treaty exists with the United States, or, of a country accorded treaty visa privileges by legislation;

·       Have acquired investment capital through lawful means;

·       Have invested or are actively in the process of investing a substantial amount of capital (we recommend $40,000 +, or intellectual property, such as patents, or software, or other assets which will be used by your future US business);

·       Are seeking entry solely to and have the capacity to develop and direct the enterprise;

·       Have invested or are actively in the process of investing in a bona fide enterprise in the United States; and

·       Have invested or are actively in the process of investing in an enterprise that is not marginal  (business will bring more profit than merely paying your salary).

Treaty Country Nationality. You must be a national or citizen of a country with which a qualifying Treaty of Friendship, Commerce, or Navigation (or its equivalent) exists with the United States, or a national or citizen of a country to which Congress has accorded treaty visa privileges by specific legislation. You must show that you are a national of a treaty country or of a country accorded treaty visa privileges by legislation. If you are in the United States, your country of nationality is determined by the passport you used when you were last admitted into the United States. To satisfy this requirement you may submit:

·       Documents showing that your request is supported by a relevant treaty or legislation. For this evidence:

ü  The treaty must be between the United States and the country that issued you the passport you used upon your last admission to the United States; and

ü  The U.S. Department of State must recognize the treaty as sufficient to grant E-2 classification to nationals of that country.

ü  If a treaty does not exist, there must be legislation according treaty visa privileges to the country that issued you the passport you used upon your last admission to the United States.

·       A copy or printout of the Form I-94, Arrival-Departure Record, you received upon arrival in the United States or obtained online at https://i94.cbp.dhs.gov/I94/; and

·       Copies of your passport identification pages. This should include:

ü  Your signature, photograph, and personal data;

ü  Any relevant visa pages; and

ü  Pages with relevant stamps showing admission into the United States.

Your Investment

Source of Funds. To qualify as a treaty investor, you must demonstrate how you obtained the funds or other assets that you have invested or are actively in the process of investing. Such evidence must demonstrate that the funds or other assets used to invest in the enterprise have not been obtained, directly or indirectly, through criminal activity. Please note that providing a statement describing the source of the funds will not be enough. Any statements you provide about the source of the funds used in the investment process should be accompanied with sufficient documentation. To satisfy this requirement you may submit evidence that include, but is not limited to:

·       A detailed narrative that explains the origin of the investment funds and how they were applied to the current E-2 treaty investment enterprise.

·       Evidence to show the origin of all funds used to pay for your investment and a legitimate path of funds, including copies of all original wire transfers from overseas, copies of cancelled checks (front & back), and copies of bank statements that have been certified by the bank.

·       Your foreign tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns.

·       Your domestic and/or foreign bank records including bank statements, evidence of transfer of funds, letters of credit, and/or any other evidence of domestic or foreign assets and accumulated income held by you that are the claimed sources of income used in your investment.

·       Your personnel records, pay records, and/or retirement records, etc. that show the claimed sources of the income used in your investment.

·       Property records that demonstrate your ownership and show any income derived from your property that are the claimed sources of income used in your investment.

·       Loan or mortgage agreements, promissory notes, security agreements, and/or other evidence of borrowing which is your unsecured personal business capital or capital which is secured by your own assets other than those of the investment enterprise and for which you are personally and primarily liable.

Investment. You must show that the capital invested or being invested, including funds and other assets, is at risk in the commercial sense with the objective of generating a profit. The capital must be your unsecured personal business capital or capital secured by personal assets, be in your possession, and be subject to partial or total loss if investment fortunes reverse. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise.

In addition, you are required to show that the capital invested or being invested is:

·       Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;

·       Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

·       Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital.

Your New Business Investment

You may submit evidence to satisfy this requirement. Evidence may include, but is not limited to:

·       If you have already invested capital into the treaty enterprise: all of your cancelled money orders, or personal, business, or cashier’s checks (front and back) or other financial documents that have been certified by the bank to substantiate that your funds were already invested into the treaty enterprise.

·       If you are actively in the process of investing capital into the treaty enterprise: all of your cancelled money orders, or personal, business, or cashier’s checks (front and back) or other financial documents together with other relevant evidence that establishes your funds are in the process of being invested into the treaty enterprise and are irrevocably committed.

·       A detailed and itemized list of goods and materials purchased to start up the treaty enterprise, as well as corresponding forms of payment made by you for the goods and materials purchased, such as money orders, or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

·       The treaty enterprise’s financial accounting of its purchase transaction, which describes in detail each individual transaction and identifies your at-risk funds, as well as corresponding forms of payment, such as money orders, or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

The treaty enterprise’s equity purchase agreement or similar agreement providing for the purchase and sale of equity between you and the enterprise, accompanied by the enterprise’s:

-  minutes of meeting or written consent authorizing or reflecting the purchase and sale of equity;

-  ledger reflecting the purchase and sale of equity;

-  equity certificates related to the purchase and sale of equity;

-  corresponding forms of payment for said equity, such as money orders, or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

Evidence should also show how the funds are irrevocably committed to the investment and placed at risk subsequent to the purchase of equity.

All pages of the treaty enterprise’s signed and dated lease that indicates the monthly rental fee, and total square footage of the premises, including all office, production, manufacturing, and/or warehouse spaces, as well as corresponding forms of payment made by you for monthly lease payments, such as money orders, or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

Purchase of a Pre-Existing Business:

To satisfy this requirement you may submit evidence that includes, but is not limited to:

·       The executed agreement which specifically outlines the details of the purchase of the enterprise, such as an asset purchase agreement, equity purchase agreement or merger agreement, including the amount and evidence of payment and including all addendums, attachments, additional statements, exhibits, etc.

·       Evidence of valuation, such as an appraisal or valuation analysis of business assets, that details the value of the assets purchased.

·       Financial and business records of the pre-existing business:

-  The pre-existing business’ latest financial statements including Balance Sheet and Statements of Income and Expenses.

-  The pre-existing business’ most recent federal income tax return, along with all appropriate schedules.

-  The pre-existing business’ Quarterly Wage Reports for all employees that were accepted by the state.

-  The pre-existing business’ current valid business licenses for city, county, state and federal, as applicable.

-  All pages of the pre-existing business’ lease that indicate the monthly rental fee, and total square footage of the premises, including all office, production, manufacturing, and/or warehouse spaces.

·       Corporate records related to the purchase of the pre-existing business, such as:

-  minutes of meetings or written consents authorizing or reflecting the purchase of the pre-existing business;

-  current equity ledger;

-  equity certificates;

-  corresponding forms of payment in the form of money orders, or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

·       The bill of sale for the pre-existing business and copies of all your cancelled money orders or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

·       Final escrow documents used in connection with the purchase of the pre-existing business and all copies of your cancelled money orders or personal, business, or cashier’s checks (front and back) that have been certified by the bank.

·       The escrow agent’s or company’s bank statement that shows the funds were actually deposited.

·       If borrowed funds were used for the purchase of the pre-existing business, the loan or mortgage agreements, promissory notes, security agreements, or other evidence of borrowing which is secured by your own assets, other than those of the investment enterprise, and for which you are personally and primarily liable.

Solely Develop and Direct

To qualify as a treaty investor, you must demonstrate that you do or will develop and direct the investment enterprise through control of the enterprise. Your control of the investment enterprise can be demonstrated through ownership of at least 50 percent of the enterprise, by possessing operational control through a managerial position or other corporate device, or by other means.

As noted above, the regulations require that you must be entering “solely to develop and direct” the operations of the enterprise. Therefore, if you are seeking admission in order to primarily engage in skilled and unskilled labor, you are ineligible for the E nonimmigrant visa classification. You may, however, perform “hands on” duties as long as they are incidental to your duties in developing and directing the operations of the enterprise. The evidence indicates that you are not coming here “solely to develop and direct” the enterprise. You may submit evidence to satisfy this requirement. Evidence may include, but is not limited to:

·       A detailed description of your duties in the enterprise.

·       An organizational chart or diagram, showing your enterprise’s organizational structure and staffing levels. If no employees have been hired, a business plan including any hiring timelines with descriptions or employee’s duties.

·       State Quarterly Wage Reports for the [1st, 2nd, 3rd, and 4th quarter of the YEAR] that were accepted by the State for all employees. The forms should include the names, salaries, and number of weeks worked for all employees.

Note: If employees listed on the organizational chart are not listed on the State Quarterly Wage Report, please explain why.

·       The enterprise’s payroll summary, and Forms W-2, W-3, and 1099-MISC evidencing wages paid to all employees.

·       Employment agreements, if any, entered into between the enterprise and any employees.

·       A current capitalization table or detailed list of the owners of the investment enterprise and their type and percentage of ownership. If you own less than 50% of the investment enterprise, submit documentation such as agreements signed by you and all other appropriate parties indicating that you control the enterprise by possessing operational control through a managerial position or other corporate device, or by other means.

·       A list of the individuals elected by the enterprise’s equity holders to oversee the management of the enterprise.

·       If applicable, the most recent U.S. Securities and Exchange Commission, Form 10-K, Annual Report showing the treaty enterprise’s subsidiaries and percentage of ownership.

·       The most recent meeting minutes for the treaty enterprise that list the current equity holders and the type, amount and percentage of equity owned.

·       The treaty enterprise’s equity certificates (both front and back) issued to the present date indicating the name of each equity holder and type of equity issued.

·       The treaty enterprise’s ledger showing all equity (certificated and uncertificated) issued to the present date including total amount and type of equity issued and the names of all equity holders.

·       For Inc. enterprises only - the treaty enterprise’s current bylaws (including all amendments), articles of incorporation (including all amendments) or certificates of designation which show the receipt date stamped by the appropriate state official, as applicable, and the type(s) and amount of stock authorized to be issued by the treaty enterprise.

·       For LLC enterprises only - the treaty enterprise’s current operating agreement including all addendums, attachments, additional statements, exhibits, etc., and limited liability company articles of organization, including all amendments, which includes the receipt date stamped by the appropriate state official, as applicable, and the names of members and the type and percentage of membership interests issued by the treaty enterprise.

·       For partnerships only - the treaty enterprise’s current partnership agreement, (including all addenda, attachments, additional statements, exhibits, etc.), and registration documents, (including all amendments), which show the receipt date stamped by the appropriate state official, as applicable, and the names of partners, type and percentage interests in the partnership and the extent of their liabilities.

·       For sole proprietorships only - the treaty enterprise’s sole proprietorship registration documents which include the receipt date stamped by the appropriate state official and which identify the individual operating the sole proprietorship.

·       Subscription or equity purchase agreements between the treaty enterprise and its equity holders.

·       For franchises only - your franchise purchase agreement and related documentation showing who controls the enterprise.

Evidence of Bona Fide Enterprise

Bona Fide Enterprise: A treaty investor is required to establish that the investment enterprise is a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. The enterprise is required to meet applicable legal requirements for doing business in the particular jurisdiction in the United States. To satisfy this requirement you may submit evidence that includes, but is not limited to:

·       A more detailed description of the enterprise’s activities.

·       The Internal Revenue Service (IRS) notice that shows the Employer Identification Number (EIN) assigned to the enterprise.

·       The federal income tax returns for the enterprise.

·       The latest financial statements, including the Balance Sheet and Statements of Income and Expenses, of the enterprise. If audited statements are available, we may give them more evidentiary weight than non-audited statements.

·       Quarterly Wage Reports for all employees that were accepted by the state.

·       Payroll summary, W-2’s and W-3’s, evidencing wages paid to employees.

·       The enterprise’s current and valid city, county, state and federal business licenses, or evidence that one is not required.

·       The enterprise’s line and block organizational chart, showing ALL hierarchy and staffing levels. List all proposed positions, summary of proposed duties, and expected education levels. Include names of employees filling the positions, if known.

·       The enterprise’s business bank statements.

·       The enterprise’s customer and/or vendor outline agreements which govern the purchase of marketing materials or services for the enterprise’s goods or services.

·       Records or other documents that establish the enterprise’s interest in real property at a physical location, such as purchase or lease agreements.

·       Escrow documents used to purchase the property.

·       The signed and dated lease that indicates the total square footage of the premises, including all office, production, manufacturing, and/or warehouse spaces.

·       A letter from the owner or property management company which confirms that the property owner has granted permission to the lessee to sublease to the investment enterprise and that the enterprise is actually occupying the premises and maintaining the sub-lease agreement, as applicable.

·       The enterprise’s telephone directory listing.

·       Local, national, and/or international newspaper, magazine, or trade publications showing advertisements or articles for or about the enterprise and its products or services. Specify the date, publication name, and circulation.

·       Utility bills.

Marginal Enterprise. A treaty investor is required to demonstrate that the investment enterprise is not a marginal enterprise. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income, but that has a present or future capacity to make a significant economic contribution, is not a marginal enterprise. The projected future income-generating capacity should generally be realizable within 5 years from the date the applicant commences the normal business activity of the enterprise. To satisfy this requirement you may submit evidence that includes, but is not limited to:

·       Detailed business plan or executive summary, with one, three, and five-year projections for business expenses, sales, gross income and profits or losses, showing that the enterprise will generate income to provide more than a minimal living for you and your family or will make a significant economic contribution, along with any evidence that supports the statements made in the business plan or executive summary. A complete, signed copy of your U.S. Individual Income Tax Return.

·       Federal W-2 and W-3 Forms.

·       Copies of rent or mortgage payments made for your residence.

·       Copies of utility bill payments for your residence.

·       Copies of monthly revolving debt statements including amounts due and paid.

·       Evidence of payment for everyday expenses, such as food, clothing, health care, child care, etc., for you and your family.

·       Copies of car titles, car insurance, or other documents indicating the cost and payment of transportation for you and your family.

·       The enterprise’s latest financial statements including the Balance Sheet and Statements of Income and Expenses.

·       Tax documents indicating growth in revenue by the enterprise.

·       Contracts and/or receipts for services and materials involving capital improvements made to assets of the treaty enterprise.

·       Payroll records indicating the employment of workers other than you and your family, especially when those records indicate an increase in workers employed since the inception of the enterprise.

·       Contracts, invoices, and/or receipts for the enterprise’s goods or services.

·       Bank statements or other documents showing payments received for goods or services provided by the enterprise.

·       Evidence, such as copies of bank statements, property records, and wire transfers, to show that you have invested in any other business ventures (not necessarily in the United States), or that you receive income from sources other than the treaty enterprise, including an explanation of whether any additional sources of income will be used to benefit the enterprise (e.g., to further the goals of the business plan).

·       Contracts from other businesses indicating future orders for the goods or services of the enterprise.

·       Copies of patent or copyright applications and/or approvals on behalf of the enterprise.

Your Nonimmigrant Status

You must be in legal status in order to qualify for E2 visa (if you are currently in the USA).

To satisfy this requirement you may submit evidence that includes, but is not limited to:

·       Current Copy of I-94 Arrival/Departure Form: The original I-94, a legible copy, or the printout of your current electronic Form I-94, Arrival-Departure Record (front and back).

·       Previous Copies of I-94 Arrival/Departure Forms: A legible copy of your original or printout of your electronic Form I-94, Arrival-Departure Record issued to you upon arrival in the United States and any subsequent and prior I-94s issued (front and back).

·       Passport Pages: Legible copies of your passport, including identification pages, visa pages, and any pages with entry and exit stamps. USCIS prefers color copies because the various color inks used for admission and departure control may not be as legible in black and white copies.

·       Approval Notices: Copies of all Forms I-797A, Notice of Action, approval notices granting you any changes of status and/or extensions of stay in the United States in any nonimmigrant classification (including L-1, L-2, H-1, H-2, & H-3 classifications). If these are not available, list the periods of employment, the name of the employer(s) and the INS or USCIS file receipt number(s) assigned to the petition(s) or application(s).

·       F-1 Student Employment (if applicable): Student and Exchange Visitor Information System (SEVIS) records. Submit copies of a properly executed SEVIS I-20 form. If you are authorized to engage in employment, also submit a legible copy of your Employment Authorization Document (Form I-766).

·       F-1 Student Status, D/S + 60 (if applicable): Student and Exchange Visitor Information System (SEVIS) records. Before USCIS may grant a change of nonimmigrant status, you must demonstrate that you were maintaining a valid nonimmigrant status at the time you filed the application requesting a change of status. To establish that you have maintained your F-1 student status at all times while in the United States, please submit the following: (a) copies of all properly executed SEVIS I-20 forms that were previously issued to you; (b) a letter from each school you have attended as an F-1 student that confirms that you maintained a full course of study at all times while attending each school (not including winter and summer breaks); and (c) sealed copies of your school transcripts from each school attended. If you are authorized to engage in employment, also submit a copy of your current Form I-766, Employment Authorization Document (Form I-766).

·       F-2 Dependent (if applicable): If you have listed your current nonimmigrant status as being an F-2 dependent of an F-1 student, before USCIS may grant a change of nonimmigrant status, you must demonstrate that you were maintaining a valid nonimmigrant status at the time you filed the application requesting a change of status. To establish that the F-1 student has maintained his or her F-1 student status at all times while in the United States, please submit the following: (a) copies of all properly executed SEVIS I-20 forms that were previously issued to the F-1 principal; (b) a letter from each school the F-1 principal has attended as an F-1 student that confirms that he or she maintained a full course of study at all times while attending each school (not including winter and summer breaks); and (c) sealed copies of the F-1 principal’s school transcripts from each school attended.

·       M-1 Student (if applicable): If you have listed your current nonimmigrant status as being an M-1 vocational student, before USCIS may grant a change of nonimmigrant status, you must demonstrate that you were maintaining a valid nonimmigrant status at the time you filed the application requesting a change of status. To establish that you have maintained your M-1 status at all times while in the United States, please submit the following: (a) copies of all properly executed SEVIS I-20 forms that were previously issued to you; (b) a letter from each school you have attended as an M-1 vocational student that confirms that you maintained a full course of study at all times while attending each school (not including winter and summer breaks); and (c) sealed copies of your school transcripts from each school attended.

Nota Bene!

Student and Exchange Visitor Information System (SEVIS) checks: COS from F-1, F-2, J-1, J-2, and M-1 Maintenance of Status Verification: If SEVIS shows “Terminated” or anything other than “Active,” immigration officer will check the date that the last status change was made on the SEVIS Exchange Visitors Listing page. If the termination or deactivation date was prior to filing the I-129 and/or prior to the expiration of the:

·       F-1 status (plus 60 days or 15 days if Designated School Official (DSO) authorized applicant to withdraw from class);

·       J-1 status (plus 30 days) indicated on the DS-2019;

·       M-1 status (plus 30 days - unless they fail to maintain status);

then the applicant was not maintaining an “Active Status” at the time of filing.

Note: SEVIS terminations are usually automatic. However, there are some occasions when the “No Show,” “Invalid” or Inactive” status will not show up for approximately 30 or more days. Before denying for failure to maintain status, immigration officer will check with the CSC, NAFSA representative to determine the exact date of termination. 
 

·       If the immigration officer will consider that the evidence you submitted with your application is insufficient, he/she will issue a Request For Evidence (RFE). Generally, it allows you 90 days to collect all the necessary evidence and submit your response to USCIS. Please contact us to find out what is the best approach to handle the RFE and how to achieve the desired result at nm@immigration-business-law.com.

If you would like to get more information on how to prepare an E-2 Treaty Investor Visa application and how to avoid the request for additional evidence, or need a professional consultation, don’t hesitate to get in touch with us at 415-240-0083 or www.immigration-business-law.com. Schedule an appointment today and get your case moving.

Natalia Malyshkina, ESQ

Immigration Attorney

The Law Office of Natalia Malyshkina

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