The E-2 Visa:
The E-2 Investor Visa Pursuant to an Investment Treaty Between the USA and the Country of Origin of the Investor eg. NAFTA for Canada or Mexico.
This article will provide the reader with a summary of the requirements of the E-2 work visa for the United States. To make the article more useful, some of the items are presented in point form for ease of reading.
1. Background Information:
Requirements: E-2 Treaty Investor
· The investor, either a real or corporate person, must be a national of a treaty country.
· The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
· The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
· The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
· The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
· The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
Applying for the Visa
Applicants for visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79, with few exceptions. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate. The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged. Visa wait times for interview appointments and visa processing time can take months depending on the Consulate involved.
During the visa application process, usually at the interview, an ink-free, digital fingerprint scan will be quickly taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer.
Each applicant for a treaty trader (E-1) visa must submit these forms and documentation, as explained below.
· Online Nonimmigrant Visa Electronic Application, Form DS-160. This is something we will work on togther.
· A passport valid for travel to the U.S. and with a validity date at least six months beyond the applicant's intended period of stay in the U.S. If more than one person is included in the passport, each person must complete a Form DS-160 application.
· One (1) 2x2 photograph.
What are the Required Visa Fees?
· Nonimmigrant visa application processing fee – The current fee for E-2 visas is $ 390 U.S. per person applying for a visa in the family with the payment being made to the “U.S. Consulate General”.
. You will need to provide a receipt showing the visa application processing fee has been paid, when you come for your visa interview.
· Visa issuance fee – Additionally, if the visa is issued, there may be an additional visa issuance reciprocity fee, if applicable.
An applicant for a Treaty Trader (E-1) or Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law, and complies with the many requirements for the E visa classification. The consular officer may provide the applicant with special forms for this purpose. The applicant can expect the consular officer to request additional documentation, to make a determination about eligibility for a treaty trader or treaty investor visa. It is impossible to specify the exact documentation required since circumstances vary greatly by applicant.
Misrepresentation of a Material Facts, or Fraud
Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the U.S.
Visa Ineligibilities and Waivers
Certain activities can make you ineligible for a U.S. visa. In some instances, an applicant who is ineligible, but who is otherwise properly classifiable for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.
If the consular officer should find it necessary to deny the issuance of a visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, however, consular officers are not obliged to re-examine such cases.
U.S. Port of Entry
A visa allows a foreign citizen coming from abroad, to travel to the U.S. port-of entry and request permission to enter the U.S. Applicants should be aware that a visa does not guarantee entry into the U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. If you are allowed to enter the U.S., the CBP official will determine the length of your visit on the Arrival-Departure Record (Form I-94). Since Form I-94 documents your authorized stay in the U.S., it’s very important to keep in your passport. Upon arrival (at an international airport, seaport or land border crossing), you will be enrolled in the US-VISIT entry-exit program. In addition, some travelers will also need to register their entry into and their departure from the U.S. with the Special Registration program.
Staying Beyond Your Authorized Stay in the U.S.and Being Out of Status
· It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip, based on the specified end date on your Arrival-Departure Record, Form I-94. Failure to depart the U.S. will cause you to be out-of-status, violating immigration laws.
· Staying beyond the period of time authorized by the Department of Homeland Security and being out-of-status in the U.S. is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S.
· Staying unlawfully in the U.S. beyond the date CBP officials have authorized--even by one day--results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.
· No assurances regarding the issuance of visas can be given in advance. Therefore final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.
· Unless previously canceled, a visa is valid until its expiration date. Therefore, if the traveler has a valid U.S. visa in an expired passport, do not remove the visa page from the expired passport. You may use it along with a new valid passport for travel and admission to the U.S.
Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal visa holder. The spouse of an E visa holder may apply to DHS for employment authorization. Dependent children of an E visa holder are not authorized to work in the U.S.
Application Document Requirements
The application must be filed with the appropriate fee payment, and evidence that:
· The investor is a national of a country with whom the U.S. has the requisite treaty or agreement;
· The alien (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise. The alien must demonstrate that he controls the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
· The investor has invested in or is actively in the process of investing in the enterprise;
· The investment is substantial, i.e. sufficient to ensure the investor’’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
· The investment enterprise is not a marginal enterprise;
· If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
· That the applicant intends to depart the U.S. upon the expiration of E-2 status.
It normally takes a U.S. Consulate abroad about three or four months to process the application and issue the work visa. With new security measures implemented and the requirement that all non-immigrant visa applicants be interviewed this could stretch out longer. There is one shortcoming for E-2 visas for Ukrainians. It is that due to reciprocity the maximum term is three months. In addition, they can only renew two times at three months each time. This does not compare favourably with most other countries who usually have five year durations. It is worth changing through Ukrainian law makers changing their rules regarding U.S. investors.
Andy J. Semotiuk
U.S. and Canadian Immigration Lawyer
In Canada with:
Pace Law Firm:
5th Floor | 300 The East Mall | Toronto, Ontario, M9B 6B7 | Canada Tel: 416-342-5537 | Fax: 416-236-1809 | Email: Andy@myworkvisa.com
Websites: www.pacelawfirm.com and www.myworkvisa.com
In New York with:
Manning, Kass, Ellrod, Ramirez and Trester
4th Floor | One Battery Park Plaza | New York, |N.Y. 10004| U.S.A.
Telephone: (646) 473-5610
Websites: www.manningllp.com and www.myworkvisa.com