Treaty Investor (E-2)
SUMMARY
The investor must show that he/she has either made or is actively in the process of making a substantial investment in an enterprise. The enterprise must be a business. It cannot, for example, be an expensive house.
WHAT IS SUBSTANTIAL?
a. At the present time, there is no minimum dollar figure established for meeting the requirement of "substantial" investment. The Secretary of State may establish a minimum amount but has not done so at this time.
b. What is substantial is determined by what is called the "relative/proportionality test."
The Test is: (i) the amount invested weighed against the total cost of purchasing or creating the enterprise; (ii) the amount normally considered sufficient to ensure the investor's commitment to the successful operation of the enterprise; and (iii) a magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise.
The consular officer will focus on the type of business to determine the total amount of investment reasonably needed to establish such a business. For example, the total amount of money needed to start a consulting service will be much less than to open a food processing plant.
In businesses requiring smaller amounts of investment (e.g. service-oriented businesses), the treaty investor must contribute a very high percentage of the total investment, whereas in businesses requiring a larger total investment, the percentage may be less.
The amount of the investment at the time of the application is relevant. In other words: what amount of money is at risk at that time? Future investment is not considered.
THE ENTERPRISE CANNOT BE MARGINAL
(1) An applicant is not entitled to E-2 classification if the investment, even if substantial, will return only enough income to provide a living for the applicant and his family.
(2) If the applicant has substantial income from other sources and does not rely on the investment enterprise to provide a living, the investment would be considered as one of risk and not one of providing a mere livelihood.
The employee must be an executive, manager or supervisor. If employed in a minor capacity, the employee must have special qualifications that are essential to the efficient operation of the enterprise.
Period of validity of the visa varies with each treaty country. In some cases, it may be granted for up to five years, with indefinite extensions.
Spouses and minor children of E visa holders will also be granted E visas, even if their nationality is not the same as the principal E visa holder.
A spouse of a treaty investor may obtain work authorization.
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Treaty Investor Visa (E-2)
Classification.
An alien is classifiable as a nonimmigrant treaty investor (E'2) if the consular officer is
satisfied that the:
(i) Has invested or is actively in the process of investing a
substantial amount of capital in 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; and
(ii) Is seeking entry solely to develop and direct the enterprise;
and
(iii) Intends to depart from the United States upon the termination
of E'2 status.
(2) Employee of treaty investor.
An alien employee of a treaty investor may be classified E-2 if the
employee is in or is coming to the United States to engage in duties
of an executive or supervisory character, or, if employed in a lesser
capacity, the employee has special qualifications that make the services
to be rendered essential to the efficient operation of the enterprise.
The employer must be:
(i) A person having the nationality of the treaty country, who is
maintaining the status of treaty investor if in the United States or, if
not in the United States, who would be classifiable as a treaty
investor; or
(ii) An organization at least 50% owned by persons having the
nationality of the treaty country who are maintaining nonimmigrant
treaty investor status if residing in the United States or, if not
residing in the United States, who would be classifiable as treaty
investors.
(3) Spouse and children of treaty investor.
The spouse and children of a treaty investor accompanying or
following to join the principal alien are entitled to the same classification
as the principal alien.
The nationality of a spouse or child of a treaty investor is not
material to the classification of the spouse or child under the
provisions of INA 101(a)(15)(E).
(4) Representative of foreign information media.
Representatives of foreign information media shall first be
considered for possible classification as nonimmigrants under the provisions
of INA 101(a)(15)(I), before consideration is given to their possible
classification as nonimmigrants under the provisions of INA
101(a)(15)(E) and of this section.
(5) Treaty country.
A treaty country is for purposes of this section a foreign state with which
a qualifying Treaty of Friendship, Commerce, and Navigation or its
equivalent exists with the United States. A treaty country includes a foreign
state that is accorded treaty visa privileges under INA 101(a)(15)(E)
by specific legislation
(6) Nationality of the treaty country.
The authorities of the foreign state of which the alien claims nationality
determine the nationality of an individual treaty investor. In the case of an
organization, ownership must be traced as best as is practicable to the
individuals who ultimately own the organization.
(7) Investment.
Investment means the treaty investor's placing of capital, including funds
and other assets, at risk in the commercial sense with the objective of
generating a profit. The treaty investor must be in possession of and have
control over the capital invested or being invested.
The capital must be subject to partial or total loss if investment fortunes reverse.
Such investment capital must be the investor's unsecured personal business
capital or capital secured by personal assets.
Capital in the process of being invested or that has been invested must be
irrevocably committed to the enterprise.
The alien has the burden of establishing such irrevocable commitment
given to the particular circumstances of each case. The alien may use any legal
mechanism available, such as by placing invested funds in escrow pending
visa issuance, that would not only irrevocably commit funds to the
enterprise but that might also extend some personal liability protection
to the treaty investor.
(8) Bona fide enterprise.
The enterprise must be a real and active commercial or entrepreneurial undertaking,
producing some service or commodity for profit and must meet applicable legal
requirements for doing business in the particular jurisdiction in the United States.
(9) Substantial amount of capital.
A substantial amount of capital constitutes that amount that is:
(i)(A) Substantial in the proportional sense, i.e., in relationship
to the total cost of either purchasing an established enterprise or
creating the type of enterprise under consideration;
(B) Sufficient to ensure the treaty investor's financial commitment
to the successful operation of the enterprise; and
(C) Of a magnitude to support the likelihood that the treaty
investor will successfully develop and direct the enterprise.
(ii) Whether an amount of capital is substantial in the
proportionality sense is understood in terms of an inverted sliding
scale; i.e., the lower the total cost of the enterprise, the higher,
proportionately, the investment must be to meet these criteria.
(10) 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 capacity should generally be realizable within five
years from the date the alien commences normal business activity of the
enterprise.
(11) Solely to develop and direct.
The business or individual treaty investor does or will develop and direct
the enterprise by controlling the enterprise through ownership of
at least 50% of the business, by possessing operational control
through a managerial position or other corporate device, or by other means.
(12) Executive or supervisory character.
The executive or supervisory element of the employee's position must
be a principal and primary function of the position and not an incidental
or collateral function.
Executive and/or supervisory duties grant the employee ultimate control
and responsibility for the enterprise's overall
operation or a major component thereof.
(i) An executive position provides the employee great authority to
determine policy of and direction for the enterprise.
(ii) A position primarily of supervisory character grants the
employee supervisory responsibility for a significant proportion of an
enterprise's operations and does not generally involve the direct
supervision of low-level employees.
(13) Special qualifications.
Special qualifications are those skills and/or aptitudes that an employee
in a lesser capacity brings to a position or role that are essential to the
successful or efficient operation of the enterprise.
(i) The essential nature of the alien's skills to the employing firm
is determined by assessing the degree of proven expertise of the alien
in the area of operations involved, the uniqueness of the specific skill
or aptitude, the length of experience and/or training with the firm, the
period of training or other experience necessary to perform effectively
the projected duties, and the salary the special qualifications can
command. The question of special skills and qualifications must be
determined by assessing the circumstances on a case-by-case basis.
(ii) Whether the special qualifications are essential will be
assessed in light of all circumstances at the time of each visa
application on a case-by-case basis. A skill that is unique at one point
may become commonplace at a later date. Skills required to start up an
enterprise may no longer be essential after initial operations are
complete and are running smoothly. Some skills are essential only in the
short-term for the training of locally hired employees. Long-term
essentiality might, however, be established in connection with
continuous activities in such areas as product improvement, quality
control, or the provision of a service not generally available in the
United States.
(14) Labor disputes.
Citizens of Canada or Mexico shall not be entitled to classification
under this section if the Secretary of Homeland Security and the
Secretary of Labor have certified that:
(i) There is in progress a strike or lockout in the course of a
labor dispute in the occupational classification at the place or
intended place of employment; and
(ii) The alien has failed to establish that the alien's entry will
not affect adversely the settlement of the strike or lockout or the
employment of any person who is involved in the strike or lockout.
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