E2 Visa Process Explained: From Filing to Approval

E2 visa defined

The E2 Business visa is a nonimmigrant visa category that's issued to foreign investors from countries that have a treaty with the U.S. to invest a substantial amount of capital in a U.S. business. As compared to a treaty trader, with an E2 visa, you can go to the U.S. to start a bona fide enterprise or purchase an existing business and work for that business.

The E2 visa is also a great option for business owners, investors or entrepreneurs who are looking to establish a startup company.

Two Ways to Apply for an E2 Visa

Once you have determined that the E2 visa is the right visa for you, there are two ways to apply for an E2 Visa: 1) from within the U.S. and 2) from outside the U.S.

E2 visa application from within the U.S.

If you're lawfully present in the U.S. under another non-immigrant visa, you can apply for a change of status to obtain an E2 visa. You can file a Form I-129 to the United States Citizenship and Immigration Services (USCIS). The petition must include evidence of your nationality, investment, and your intent to return once your visa expires.

E2 visa application from outside the U.S.

If you are physically present outside the U.S., you would need to apply for an E2 visa through your home country's U.S. Embassy or Consulate. You would need to file a Form DS-160 to start with your application for an E2 visa.

File the Form DS-160

If you're applying for an E2 visa outside of the U.S., then you'd need to file a Form DS-160. Together with the form, you need to provide your information and purpose for going to the U.S. After completing the form, you will be given a confirmation page and code which you would need to have with your interview.

Pay the corresponding fees

Aside from your qualifications, you also need to take into account the cost of E-2 visa. Once you have filed your Form DS-160, you will need to pay the application fee of $315. Moreover, you might also be required to pay additional fees, for example, visa issuance fees or reciprocity fees depending on your country. After you have paid all the fees, save the receipts as you will need them later.

Schedule your visa interview

All applicants between 13 and 80 years old are required to have a visa interview at the U.S. Embassy or Consulate to complete their visa application. We recommend that you schedule your interview as soon as possible so you don't need to wait long due to the high volume of visa applications.

Prepare relevant supporting documents

The consular officers would use the documents you have submitted including the answers to your interview to determine if you are eligible for an E2 visa, so you must prepare all the relevant documents to increase the chance of you getting approved.

Attend the interview

After the submission of the petition, you will then be interviewed by the U.S. Embassy or Consulate office regarding your purpose and intention of going to the U.S. You need to prove your intent to depart once your E status expires because if it's suspected that you want to remain in the U.S. permanently, then your application might be rejected.

E2 Visa Process for Startup Companies

Step 1: Consulting with an Immigration Lawyer

The first step in obtaining an E2 visa is to first consult with an immigration lawyer. With the expertise of an immigration lawyer, they can review your situation and circumstances to determine if the E2 visa is the right option for you. They can help you check if there are easier and better options for you based on the goals and benefits you want to acquire.

Step 2: Setting Up Your Company

Once you have consulted with an immigration lawyer and have determined that the E2 visa is the right option for your current immigration and financial goals, the next step is setting up your E2 company. There are two important steps when setting up an E2 company: 1) Forming the company, and 2) Opening a bank account

Forming the company

You may choose any business information when setting up your E2 company such as an LLC or corporation. However, you have to make sure that you own at least 50% of the E2 business. This is because one of the requirements of an E2 visa is that you direct and develop the E2 business, which means you need to show that you have operational control of the business by owning at least 50% of it.

Opening a bank account

After you have formed your company, the next step would be to open a bank account as you would need it to operate an E2 company. Additionally, bank records from your business account will form as evidence for your E2 visa application.

Step 3: Transferring the Investment Funds to the Business Bank Account

Once you have set up your business's bank account, the next step is to transfer the investment funds into the bank account. This is because, as the USCIS stated, you must make a substantial investment in a U.S. business to qualify for an E-2 visa.

The substantial investment begins with actually depositing the investment funds into the business bank account. While there is no minimum amount set by the regulations, you should at least aim to invest at least $100, 000.

Step 4: Spending the Investment Funds

Once you have transferred your investment funds into the business bank account, you need to begin to spend the funds for business expenses including inventory, equipment, supplies, and marketing among others.

One of the requirements to get an E2 visa is that your funds must be "at-risk" and "irrevocably committed" to the bona fide enterprise. It is not sufficient that you deposit the funds into the business bank account, you must spend the funds for the benefit of the business.

The consular officer reviewing your case will determine if your investment is truly at risk or irrevocably committed according to the E2 guidelines. If not, then your application can be denied.

Step 5: Submitting the E2 Petition

Once you have set up your business or enterprise and that your investment capital is "at risk", you can now file for your E2 petition. There are two primary options when applying for an E2 visa: 1) change of status with the USCIS, and 2) visa processing at the U.S. Embassy or Consulate.

A change of status can only be done when you're lawfully present in the U.S. under another non-immigrant status. This can be done by filing with the USCIS a Form I-129. When doing so, you get an E2 status instead and not an E2 visa. It doesn't give you the ability to travel freely in and out of the U.S. because once you travel abroad, you will lose your E2 status.

Meanwhile, if you're physically present outside the U.S., you would need to do visa processing for your E2 petition. To do this, you must file a Form DS-160 to the U.S. Embassy or Consulate in your home country. Once you have completed your form, submitted the relevant documents and completed your interview, you will be able to obtain your E2 visa.

Required Documents

The consular officer or adjudicator determines your eligibility for an E2 visa depending on the relevant documents that you have submitted as well as your interview answers. This is why you must prepare your E2 visa requirements carefully. Here is the list of required documents for an E2 visa:

• Filed Form DS-160;

• A copy of your passport that is valid for at least 6 months beyond the period of your stay in the U.S. and with at least one blank page;

• Two coloured photographs that comply with the U.S. visa photo requirements. You are allowed to wear a headdress if required by the religious order in which you are a member;

• The receipt that shows you have paid the required application fee;

• Form DS-156E, if you are an executive, manager or essential employee;

• Curriculum vitae;

• Proof that you intend to depart the U.S. once your visa expires such as property deeds or apartment lease;

• Proof that you invested in a bona fide enterprise such as a business license, bank statements, organizational chart, tax returns, and financial statements among others. This means that the enterprise must be real, active and operating which produces products or services for profit;

• Proof that your investment is substantial such as personal bank statements, business bank statements, business license and registration, and business plan;

• Proof of your nationality; and

• Proof that the enterprise is not a marginal enterprise such as personal tax returns, personal assets and income, and payroll records. This means that the business or enterprise has the present or future capacity to generate more income than that is for the minimal living of the treaty investor and his or her family members.

Factors to Consider When Applying for an E2 Visa

If you're planning to apply for an E2 Treaty Investor visa, there are different things you need to consider as a treaty investor:

Requirements for the investment

You must invest a substantial amount in a U.S. business or enterprise to qualify for an E2 visa. There's no minimum amount of investment required, but its substantiality depends on the nature of the business. It must be sufficient enough to ensure your financial commitment to the success of the business, or of magnitude to support the likelihood that you will successfully develop and direct the bona fide enterprise.

Take note as well that the investment capital must be subject to partial or total loss if the investment fails.

Comprehensive business plan

You must have a comprehensive business plan that shows your investment, goals, and projected growth or success. It should also show that your investment will create jobs for qualified U.S. workers.

Eligibility of your country

Only a national of a country that has a signed treaty with the United States or with a qualifying international agreement, or which has been deemed qualified by legislation can apply for an E2 visa. You need to make sure that you're a national of qualified E2 countries before applying.

Interview with the U.S. Embassy or Consulate

The interview with the U.S. Embassy or Consulate is one of the important steps in an E2 visa application. You need to prepare to answer questions related to your qualifications, your investment, and your business plan.

Extensions

The E2 visa is valid initially for 2 years. You need to meet the requirements to be able to renew your visa in increments of 2 years indefinitely.

Consult with an immigration attorney

The E2 application process can be complicated and rigorous, so consulting with an experienced immigration attorney can help you navigate the process. Your immigration attorney can prepare the relevant documents you would need to submit, which can help increase the chances of you getting approved.

Here at Davies & Associates, our experienced lawyers can help you with determining the relevant documents for your application to streamline the process and increase the chances of you getting approved.

Spouses and unmarried children

As an E2 visa holder, you can bring your spouse and unmarried children under the age of 21 to the U.S. with you. They can apply for an E2 dependent visa, which also allows them to freely live and work in the U.S.

E2 Visa Processing Time

The processing time for an E2 visa can vary depending on the USCIS service center or U.S. Consulate where you submitted your application. Generally, it will take you at least 5 months if you file with the USCIS. However, you can have your application expedited and adjudicated within 15 calendar days once you pay a premium processing fee of $2, 500.

Meanwhile, applications in the U.S. Consulate can take from 2 weeks up to 4 months.

Validity and Extensions of an E2 Visa

The E2 visa is initially valid for 5 years, which you can extend for up to 2 years at a time with the USCIS. There is no limit to the number of times you can file for an extension as long as you maintain the intention to depart once your status expires or is terminated.

E2 Visa Dependents

The E2 visa allows dependents to join the treaty investor in the U.S. Your spouse or unmarried children under the age of 21 can apply at the same time as you. To work, your spouse doesn't need to obtain an Employment Authorization Document 9EAD), while your children can study in the U.S.

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