Substantial Investment for E-2 Visas May Not Be as Big as You Think

Much of the attention in the media on employment-based visas seems to be directed at the H-1B software engineers, with a smattering of attention focused on those who get Green Cards through the EB-5 program. For this reason, it would be understandable if the owners of a small business did not know that E-2 non-immigrant visas are available and are often used by owners of small businesses, including restaurants.

E-2 visas suffer from obscurity, compared with H-1B and the EB-5 visas, and they also suffer from a misapprehension concerning the required investment.

There is a common perception that you must invest a fortune to get a E-2 visa. For this reason, many small business owners do not see a place for themselves in the E-2 visa world.

E visas are issued pursuant to section 101(a)(15)(E) of the Immigration and Nationality Act. According to this section, people who are nationals of a foreign country that is a signatory of a treaty of commerce and navigation or a bilateral investment treaty with the US may enter US as non-immigrants for an indefinite period of time in order to carry out the purposes set forth in that section. Two of these purposes are as follows: (i) solely to carry on substantial trade, including trade in services or trade in technology, principally between the US and the foreign state of which the person is a national; and (ii) solely to develop and direct the operations of an enterprise in which the person has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.

The investment must be substantial. However, the substantial nature is not established based on an absolute number of dollars invested. There is no rule that an investment above a certain amount is substantial or an investment below a certain amount is not substantial. Restaurant owners, for example, who invest a relatively small amount may be making a substantial investment. For example, treaty-investor status was upheld for the purchase of a franchise restaurant for $53,000 (albeit in 1978) where the Board of Immigration Appeals held that the investment was substantial.

The E-2 visa is one that more small business owners or potential investors should know about. It is a powerful visa: did you know that the authorized stay for holders of E visas is renewed for three years each time the holder enters the US? An individual wishing to come to the United States or stay in the United States in order to operate a business should closely consider the E-2 visa.