From Africa and Want to live as well as own a small business in the U.S?

The E-2 Visa is a Route for a Non-U.S Citizen to Purchase and Operate a US Small Business iStock_000005918934Small

The E-2 visa is a non-immigrant visa, available to countries from nations which have bilateral investment, commerce, and navigation treaties with the United States. Individuals who qualify will have made a substantial investment in a United States company, and wish to come to the U.S. to develop and direct the business operations of that enterprise. You may check the list of qualifying countries like Ethiopia, Congo-Brazzaville, Congo-Kinshasa and others- through the US Citizenship and Immigration Services (USCIS) OR in Foreign Affairs Manual (FAM)  – Select 9 FAM 402.9.

How to Become an E Visa Holder

If an applicant is abroad, he must apply for issuance of the E visa stamp at a U.S. Consulate or embassy. The E visa application must document that the U.S. company qualifies as a treaty investor or treaty trader company, and that the individual applicant meets the criteria as an executive, supervisor/manager or essential employee. The E visa stamp can be issued valid from less than a year up to 5 years depending on reciprocity between the U.S. and the foreign treaty country. However, upon each entry to the U.S., the I-94 card is issued for a validity period of 2 years stay in the U.S.

Applicants physically present in the U.S. in a different visa status may be eligible to change to E status by filing an application with the US Citizenship and Immigration Services (USCIS). The E visa status allows the employee to work for the petitioning company only. However, an E-1/E-2 approval notice from USCIS for a change of status cannot be used to re-enter the US after travel abroad; a visa stamp must be applied for and issued by a US Consulate abroad.

Dependents (spouses and unmarried children under 21 years of age) of an E-1 or E-2 nonimmigrant will be admitted under same classification as the principal. The dependent spouse and child(ren) are not required to have the same nationality as the principal alien. Effective January 16, 2002, spouses of E-1 treaty traders or E-2 treaty investors who have been admitted to the United States are authorized employment without restrictions.

What is Required in order to Apply?

  • The investor is a national of a country with whom the U.S. has the necessary treaty or agreement.
  • The foreign investor (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise.
  • The foreign investor must demonstrate that he controls the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means.
  • The investor has invested in or is actively in the process of investing in the enterprise.
  • The investment is substantial, i.e. sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise.
  • The investment enterprise is not a marginal enterprise.
  • If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
  • The employee has the same nationality as the principal foreign employer.

What is difference between the E2 and E1 Visas?

The E2 Visa is commonly known as the treaty investor visa, which shouldn’t be confused with the E1, which is otherwise known as the treaty trader visa.  Both are meant to perform a great deal of trade or investment in the United States. The E-2 makes eligible direct investors whose “… investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.” E2 visa applicants must have control over the funds that are being invested in the business enterprise that’s being created and come to the U.S. specifically to develop the enterprise in question. Moreover, the income to be generated should be more than what is required to sustain your family.

On the other hand, the E-1 Visa is applicable to traders and trading enterprises.  Since the E1 visa deals with traders, the Department of State clearly requires that “the international trade must be substantial, meaning that there is a sizable and continuing volume of trade.” Thus, the E-1 Visas holders or “Non-Immigrant Traders” are significantly fewer in number (compared to E-2 countries) but have a wider access pool – so to speak – because “the investor [can be], either a person, partnership or corporate entity, [and stricter since they] must have the citizenship of a treaty country”

Many countries have either trade or investment treaties, or both, with the United States. A listing of countries that the US currently has treaties with can be downloaded from the State Department’s website here. Below is a list of most requirements for each party to the E Visa Application process (we advise that you contact a competent immigration lawyer for a more exhaustive analysis or contact a Musinguzi Law Group expert associate for more reliable results).

E Visa Applicant

  • Resume or CV (with detailed description of job duties and dates of employment)
  • Copies of diplomas, degrees, and certificates Evidence of nonimmigrant status if present in the U.S. (visa, I-94, approval notices)
  • Copies of passports of E Applicant and all dependents (include relationship and current address)
  • Detailed job description for U.S. position

US Company/Commercial Enterprise

  • Annual Report or Certificate of Incorporation and Articles of Incorporation
  • Stock certificates (showing total ownership of the company)
  • Business registration, business license, business permits, DBA’s
  • Commercial lease
  • Brochures, catalogs, promotional and product literature, and advertisements
  • Evidence of trade; invoices, contracts, bills of lading, and other business documentation
  • Photographs of the business
  • Corporate tax returns (IRS 1120, IRS 941, TWC C-3)
  • Financial statements
  • Bank account statements
  • Wire transfers; certified checks or other evidence of capitalization of the company
  • Corporate organizational chart
  • Company information to complete Form DS 156E

Foreign Company (if applicable)

  • Annual report or Certificate of Incorporation and Articles of Incorporation
  • Business registration, business license, business permits
  • Company information (history, facilities, products, # of employees, clients)
  • Commercial lease
  • Brochures, catalogs, promotional and product literature, and advertisements
  • Invoices, contracts, bills of lading and other business documentation
  • Photographs of the business
  • Corporate tax returns
  • Financial statements (balance sheet, income Statement, asset & deficit, payroll)
  • Bank account statements

When applying for an E2 visa, a lot of criteria must be met. A rejected application is common because you can easily miss an important detail given all of the paperwork and documentation required. Without any legal help, maneuvering the complicated visa application process to the untrained eye can be frustrating, time-consuming and potentially fruitless.

The author is the founder and owner Martin Musinguzi of the Musinguzi Law Group leaders in immigration law with affiliates in East and Central Africa with offices in Charlotte, NC and New York, NY. They assist foreign and / or US companies as well as individuals with the E visa process.

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