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E-2 Visa: From Visitor to Investor

Often times a B-1 Business visitor is already in the United States negotiating business arrangements and is unable to leave due to critical business reasons. Under this circumstance, he or she can file a change of status application in the United States if he or she qualifies as a treaty alien. In the alternative, he or she can return to the home country or a consulate in a third country and make an E visa application at the U.S. consulate there.

It is important to keep in mind that at the time of filing the change of status application, the treaty alien must remain in lawful status. If the applicant "overstayed" his or her period of authorized admission, he or she will be required to submit his or her visa application at the consulate located in the country of the alien's nationality.

The E-2 Treaty Investor Visa provides that where a treaty exists between the U.S. and a foreign country qualifying nationals may come to the U.S. to conduct trade or to manage investments. Those qualifying for the E-2 Investor visas can establish, plan and manage long-term business goals while in status as an E-2. To qualify for E-2 Treaty Investor Visa the applicant must provide supporting documents to show:

  1. Evidence of the nationality of the investors from the qualifying nation. Seehttp://travel.state.gov/visa/reciprocity/country_pick.htm for updated country specific information.
  2. Evidence of investment in the United States: Must show that the applicant or the company has made or is in the process of making a substantial capital investment in bona fide business enterprise in the U.S.
  3. Evidence that the applicant is either the principal investor who will direct and develop the enterprise, or an executive, supervisor, or employee whose services are essential to the efficient operation of the U.S. Company.
  4. Evidence of Establishment: The proposed investment or business enterprise has the present or future capacity to generate more than enough income to provide minimal living for the investor and his or her family, or has present or future capacity to make significant economic contribution.
  5. Evidence of alien's qualifications: Typically a statement by the applicant or the applicant's attorney, including curriculum vitae, summarizing the alien's past experience and credentials and certified copies of school transcripts and any degrees awarded is required.

Increasingly, the USCIS and consulates are closely reviewing the type of duties to be performed by the visa applicant to assure that they are eligible for E status. Moreover, a smaller investor and the investor still in the process of forming the investment company must present significantly more evidence to convince the USCIS that an actual viable business is being established. For example, the types of financial transactions making up the investment; evidence of ongoing negotiations; market research study by a professional consulting firm, etc. This is especially true when the investment enterprise has not yet employed any U.S. workers.

However, if an applicant meets the initial threshold requirements, the E-2 visa holder may also bring his or her spouse and children that are unmarried and under the age of 21. They are not required to be from a treaty country and are eligible to work and attend school while in the U.S.

Given the extensive documentation required for an E visa application, it is important to employ a legal professional who has experience in this area to help navigate the process.

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