E-2 investor visa allows entry to the United States (from another country that the United States maintains a treat y with) in order to work based on a substantial amount of investment and control he or she will hold while in the United States.
The investment must be active. An active investment refers to its operation and services. In other words, the investment must allow the investor to undertake procedures in an effort to produce goods for profit. The investor must be engaged in the business enterprise; passive activities within the business enterprise will not qualify. For example, purchasing a property may not be sufficient. Instead, the investor must hire employees in order to manage, develop, improve, and maintain that property. Throughout this process, the investor must remain active by controlling and directing the investment in order to begin or continue providing services.
The investment must be substantial. While there is no set minimum amount to consider the investment “substantial,” it must nonetheless be substantial in its connection to the total expenses of purchasing an existing or already established business enterprise. Also, a substantial amount of capital must be sufficient to secure the successful operation of the business enterprise.
One of two tests must be met in order to be considered a “substantial” investment:
Investment must not be marginal. That is to say, the investment must have the potential or power to produce enough income in order to support a decent living for the treaty investor and his family. Additionally, in most instances, such investment should provide individuals living in the U.S. with job opportunities. While creating employment opportunities for U.S. workers is not a requirement, it can be used to show that the investment is not marginal. When an investment is not considered to be marginal, it will require individuals beyond the investor to operate the business or enterprise. Further, it will generate enough income to fulfill the investors living expenses, along with payment of its U.S. workers.
Therefore, the issue is whether there is a projected and reliable return on the investment in order to meet the requirements of an E-2 treaty investor visa.
An essential role in an enterprise can be held by both the principal investor and certain employees of the investing enterprise. Both can obtain a treaty-investor status.
An individual, applying to enter the U.S. as a treaty investor, is considered a principal investor when he has a majority—at least 50%—ownership in the business, along with the responsibly of controlling and developing that enterprise. This generally occurs when the investor owns a majority and controlling interest in the business.
Another way an individual can enter the U.S. is as an employee of a company.
In order to qualify for an E-2 nonimmigrant visa as an employee of a treaty investor, the following must be satisfied:
Therefore, the employee must play an essential role for the operation of the company.
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