E-2 (The Investor Visa)
THE INVESTOR VISA
This for general Information purposes:
We can meet in person at my office or via telephone, so we can give you more specific information and documentation needed to start and complete the process quickly and accurately.
To qualify for this visa the most important factors are:
- SUBSTANTIAL INVESTMENT: Your investment must be substantial. This is not defined in dollar terms, but is related to the amount necessary to purchase an existing business or establish a new business. Investments at the lower end of the range are usually between $100,000 and $150,000, but can be less than that. However, it may be difficult to get approval for E-2 visas if smaller investments are involved. Some financing is possible. However, we do not normally recommend more than 25% - 30% of the purchase price be financed for investments in the range $100,000 -$500,000, although there is some discretion in this. Your investment must be irrevocably committed to the purchase and should be placed in a special escrow account - funds in a business account, for example, are normally insufficient to qualify you for an E-2 visa.
- NON-MARGINAL INVESTMENT: You will need to demonstrate that the business in which you are investing will generate more than enough income to support you and your family, and will contribute to the economy, usually by employing U.S. workers.
- ACTIVE INVESTMENT: The business must be a fully operating business as you, the applicant, are expected to be actively engaged in developing and directing it. Passive investments do not qualify.
- INVESTOR MUST BE THE SOURCE OF FUNDS: The investor must be the source of the invested funds. Personal loans from relatives or friends can be considered part of your investment as long as the business is not collateral for the loan. Gifts of funds for the investment are also permitted.
The E-2 visa regulations currently allow for two co-investors to invest in and obtain visas to work in the business. This can be, for example, husband and wife. Father/mother and son/daughter, or two unrelated business partners may also both be able to obtain E-2 work visas. E-2 investors are only permitted to work in their own business, not elsewhere. The spouse of an E-2 investor can apply for work authorization once in the U.S., which will allow him/her to work for any employer.
Dependent children under 21 will normally receive E-2 dependent visas up till their 21st birthday. Dependent visas do not permit recipients to work in the business or elsewhere, but they can study or simply accompany their parents. After reaching the age of 21, to stay in the U.S. they will have to qualify for visas in their own right. They could obtain F-1 visas, if attending college, which would continue for the duration of their course of study; or they could become investors in a business and qualify for E-2 investor visas in their own right. If they are graduates, they could qualify for H-1B visas for graduate positions. H-1B numbers are subject to an annual restriction, however.
Elderly or disabled dependents usually can accompany you. They must obtain B-2 visas, and are normally permitted to stay in the U.S. with you as long as you remain in valid E-2 status. Their B-2 visas can be obtained simultaneously with your E visas.
E-2 visas can be issued for up to five years. It is not unusual, however, for the American Embassy in London to issue an E-2 visa for two years for the initial application. On renewal the visas are normally granted for five years as long as the Embassy is satisfied that the business continues to meet the E-2 requirements.
All E-2 visas have to be renewed at the American Embassy in London, and all applicants over 14 years old must attend for a short interview.
If you have a criminal conviction this has to be stated in the visa application and a Memorandum of Conviction obtained from the Court in question. Visa eligibility will depend on the nature of the conviction. Minor offences are not likely to cause a problem. This should be discussed in advance, however.
Green Card Issue:
The E-2 visa does not automatically lead to a Green Card (nor does any other non-immigrant visa). However, as investors, you can keep renewing your E-2 visas indefinitely, as long as you continue to run the business successfully. If you have a business in the U.K. which continues to trade while you are in the U.S., you and your family may be able to qualify for Green Cards on the basis of a Multinational Manager application, after the U.S. business has traded for at least one year. The sizes of the U.K. and U.S. companies would have a bearing on your eligibility. You do not have to have a business in the U.K. to qualify for an E-2 visa, but you do need to have one to qualify as a Multinational Manager for a Green Card.
Other routes to obtaining a Green Card, after an initial E-2 visa:
- Sponsorship by a close relative (parent, child or brother/sister, with varying waiting periods). If you have a child who marries a U.S. citizen, he/she can obtain a Green Card. Once a U.S. citizen, he/she can sponsor a parent for a Green Card.
- Sponsorship by a prospective employer, where the employer can satisfy the Department of Labor they cannot find an American to do the job. This can take two years or longer. This, unfortunately, is a complicated and time consuming process.
- Making an investment of $1 million (or $500,000 in a rural area or area of high unemployment) in a business, and creating 10 new jobs.
For some people none of these represent viable options. In that case you can still remain on an E-2 visa in the U.S., and renew this every five yearsII. Which visa is right ?
If you are buying a business in America, there are normally only three visa options - the E-2, the L-1 and the Green Card. Each has different requirements. If you are eligible for a Green Card (permanent residence) this may take a year or longer to obtain. It is usually prudent, therefore, to consider an E-2 or L-1 non immigrant visa initially and apply for a Green Card later.
There are often misunderstandings as to the relative merits of the E and L categories. A Green Card (as a Multinational Manager) can be applied for when you are in the States regardless of whether you had an E-2 or L-1 visa previously, as long as you own an overseas business which continues to trade actively.
E-2 (Treaty Investor): Key Visa Requirements
- You must be a citizen of a treaty country, e.g. U.K., Pakistan, etc.
- A substantial investment in the U.S. must be made. Some financing restrictions apply
- The business must be quite profitable and employ U.S. workers
- Funds must have been committed to the business purchase
The initial E-2 visa can be issued for between two and five years. Renewal is usually straightforward, normally for five years, provided the business continues to qualify.
Either one investor or two (50-50) husband and wife co-investors (or unmarried partners) can normally qualify for E-2 investor visas based on one application to the American Embassy in London, which allows both to work in the business. If your spouse does not wish to work in the business, he or she, as an E-2 dependent, can, under legislation approved in 2002, apply for work authorization through USCIS (U.S. Citizenship and Immigration Services) once he or she arrives in the U.S. This permits him or her to work anywhere, as long as the E-2 investor spouse remains in valid E-2 status. This applies to dependent spouses only, not dependent children.
L-1 (Intra-company Transferee): Key Visa Requirements
- The U.S. company must be affiliated to the U.K. company through ownership.
- You must have worked in the U.K. company as a manager or executive for at least one year in the last three and have a similar position in the U.S. company.
- The U.S. company must have already been established or purchased.
- The U.K. company must continue to operate in your absence.
If the U.S. business is newly established, the L-1 visa will be issued for one year only, at the end of which a renewal application must be made.
When applying for your initial L-1 visa for a new business, you do not need many employees. However, at renewal, one year later, you normally must show a substantially larger operation. Otherwise the renewal may not be granted.
Under legislation approved in 2002, a dependent spouse (on an L-2 visa) can apply for work authorization through USCIS (U.S. Citizenship and Immigration Services) once he or she arrives in the United States.
To obtain a Green Card as a Multinational Manager, many of the requirements are similar to those of an L-1. You must demonstrate that both the U.K.and U.S. businesses are reasonably substantial. A previous L-1 visa is no guarantee, however, of a Green Card. It is hard to get an application approved where either business is very small. If the E-2 visa would be more advantageous, for example because of the longer initial approval period, choose an E-2 initially and apply for the Green Card later when your U.S. business has grown.III. Planning an Application
To go to America and buy a business, this is what you have to do:
- Assess what funds you have available.
- Decide whether to start a new business or buy an existing one. The latter option is simpler for most people.
- Decide where you want to go in the U.S. The E-2 visa requirements are the same wherever you go, but prices vary considerably in different cities and states. You may want to make preliminary visits to help you choose, and consider housing, schools, etc.
- Consider what type of business you want to operate. Choose one you will enjoy - you may be operating it for many years! It does NOT have to be in a similar business field to one you've worked in before, nor do you have to have run a business previously yourself.
- Assess your visa options, and decide which visa best applies to your situation. The visa category may affect your choice of business as the requirements vary according to category. For many, the E-2 visa represents the best and often only option. Become familiar with the general E-2 visa requirements as they will apply to you and each family member.
- If you opt to purchase an existing business, locate a reliable business broker in the state where you wish to live. Florida has a number of brokers who advertise and specialize in locating businesses for British buyers, and will send details to you in the U.K. In other states you may have friends or relatives who can help to put you in touch with a business broker. There are also websites listing existing businesses for sale.
- Plan a trip to the U.S. to identify locations where you would like to live, and to look at businesses. It is not advisable to sell up in the U.K. and move your family to the U.S. until after your visas are issued. A British person can travel to the U.S. on the visa waiver program, or on a B visa. This allows you to look at businesses, sign contracts, open a business account, and sign a lease, for example, but you must not run the business until you have the requisite visa.
- Once you have located a business which you are considering purchasing, it is prudent to have the various legal documents (e.g. purchase contract, lease) reviewed by an attorney, and to arrange for a qualified accountant (CPA) to review the financial records of the business.
- You will need to sign the business purchase contract before applying for your visa. It is recommended that this include a clause stating that the purchase is subject to you obtaining an E-2 visa. You are advised not to complete the purchase until your visas are issued.
- Now that you have identified your business, the visa application process begins. This involves obtaining documentation from a variety of sources for the application, which will include proof that you have transferred the funds for the investment (normally the full cash amount for the purchase) into a special "escrow" account in the United States. It normally takes about eight to ten weeks for the adjudication at the American Embassy
- Can I qualify for an E-2 visa? Answer: As long as you are a citizen of one of the over seventy countries which has the necessary investment treaty with the United States you can qualify. For example, British, Irish, Pakistani and Bangladeshi citizens can qualify. Indian, South African and Tanzanian citizens do not. For other nationalities, please ask. Your spouse's nationality does not matter as he/she can obtain an E-2 visa as a dependent regardless. If you are a U.K. citizen, you must be resident in the U.K.
- How much do I have to invest? Answer: While there is no minimum amount, it is currently difficult to make a qualifying investment with less than $100,000 to $150,000, but it may be possible. Usually the larger the investment the stronger the case. Note that for small businesses, you will be expected to have invested the great majority of the purchase price in cash. For further details, see How Much to Invest?
- Is the amount I invest the only factor for visa approval? Answer: Definitely not. The investment amount is only one factor. Equally important are the profitability of the business and its contribution to the local economy, normally through its employment of U.S. workers. It should generate more than enough income to support you and your family, and employ perhaps a couple of U.S. workers. For more information, see Business Profitability and Employee Requirements
- Do I have to find the business before I make a visa application? Answer: Yes, you do. The application is based on the specific business in which you are investing. If you are buying an existing business, this has to be identified prior to an E-2 visa application being made, and a purchase contract signed. It is always advisable to have a clause in the contract stating that the purchase is subject to you obtaining an E-2 visa.
- Can I get an E-2 visa to start up a new business? Answer: Yes you can. You will have to show you have made the various expenditures required to set up the business before the visa application is approved. The American Embassy will have to be convinced that your business will be profitable and employ U.S. workers. Unless you have a good track record in business in the U.K. or have firm evidence of prospective business customers in the United States, start-up business applications can be hard to get approved.
- What kind of businesses qualify? Answer: All kinds of businesses can qualify. What is critical is that the business generates more than enough income to support you and your family and creates employment. Choose a business you can run effectively and will enjoy! Remember, though, that there are restrictions on financing. For example, if you want to buy a motel with a small down payment, you could run into difficulties.
- Do franchises qualify for E-2 visas? Answer: Yes they can. The same requirements apply for a franchised business as any other, whether it is a new franchise or a franchised business already in operation.
- Must I have all the money available prior to the application being made? Answer: Yes, you do. The Embassy will want to see funds deposited in escrow (trust) in the United States for the business purchase. This demonstrates that the funds are irrevocably committed to the business purchase, subject to visa issuance. From the visa perspective, it is prudent to deposit the full amount in an escrow account. Arranging escrow deposits is a relatively straightforward matter.
Can my spouse and I both get visas to work in the business? Answer: Embassy adjudication policies have varied over the years. Usually, as long as each owns 50%, it is possible for a married couple or a couple who live together both to obtain E-2 investor visas to work in the E-2 company. A parent and adult child, or two unrelated business partners may also be able to obtain work visas as joint 50-50 investors. This is at the discretion of the visa officer.
If you decide to form a 50% partnership with an American citizen, only one British investor would obtain an E-2 investor visa to work in the business.
Under legislation approved in 2002, a spouse who obtains an E-2 dependent's visa rather than an E-2 investor visa can apply to USCIS (U.S. Citizenship and Immigration Services) for work authorization once in the U.S. This allows the spouse to work anywhere as long as the principal E-2 investor remains in valid E-2 status. The E-2 investor, however, can only work in the E-2 company.
- Can I get a loan from a friend or relative for investment purposes? Answer: Yes, you can. Any loans not secured by the business assets are permissible. There are restrictions, however, on loans secured by the business assets.
- How do I go about applying for an E-2 visa? Answer: Your visa application must be submitted to the American Embassy in London if you normally live in the U.K. This will be based on a particular business, whether new or existing. If new, you must document that the necessary expenditures have already been made. If buying an existing business, you must provide a signed purchase contract. A significant volume of paperwork is required for an application and it is quite hard to do yourself. As well as the necessary forms, duly completed, each E-2 requirement has to be thoroughly documented with supporting paperwork, and a comprehensive explanatory letter enclosed.
- How long does the U.S. Embassy in London take to adjudicate applications? Answer: It is likely to take eight to ten weeks for your application to be adjudicated. If the Embassy requests additional information, then obviously it takes longer.
- What are my chances of success? Answer: Your chances of success depend on the careful selection of your business and preparation of your application. If you choose a business which meets all the E-2 visa requirements and the application is thoroughly documented and explained, there is every reason to suppose the case will be approved.
- What happens to the funds I have invested if the application is refused? Answer: If you have a contingency clause in the purchase contract, stating that the purchase is subject to you obtaining an E-2 visa, the funds in escrow should be refunded to you under normal circumstances.
- What happens if I later sell my business? Answer: If you sell the business without previously buying another qualifying business, you are no longer eligible to remain in E-2 status. You must either leave the States, or apply to change to a different status, for which you do qualify.
- Can my children and elderly parents come too? Answer: Yes. Children under 21 receive E-2 dependents' visas. On reaching 21, to remain in the U.S., they must change to a different status, independent of their parents. This can be, for example, based on full-time student status, employment, or marriage to a U.S. citizen. Elderly dependents can normally come with you on B-2 tourist visas, and remain with you in that status as long as you remain in valid E-2 status, and they continue to be considered temporary visitors.
- What if I have a criminal conviction? Answer: If you have a conviction this has to be stated in the visa application and a Memorandum of Conviction obtained from the Court in question. Visa eligibility will depend on the nature of the conviction. Minor offences are not likely to cause a problem.
- Will I ever qualify for a Green Card? Answer: That will depend. There are a number of routes to a Green Card. The E-2 visa does not, in itself, lead to a Green Card (nor does any other non-immigrant visa). However the E-2 visa does not close options either. For instance if you have a business in the U.K. which continues to trade once you have moved to the U.S., you may qualify for a Green Card as a Multinational Manager. Alternatively, if you have a close relative in the U.S., they may be able to sponsor you. Otherwise, if you have $500,000 - $1 million available for investment at a later stage you may be able to get a Green Card by that route - see E-2 visa requirements section for further discussion.
- Is the E-2 my only option? Answer: If you do not have a business in the U.K. or in another foreign country, and want to buy a business in the U.S., the E-2 is likely to be your only option, unless you have at least $500,000 to invest. If you do have a U.K. (or foreign) business, you may consider also the L-1 option - see Which Visa?
- How much does it cost? Answer: Fees for an E-2 visa application may vary a little depending on the nature of the business and the circumstances of the application. Our fees are competitive. We can quote you a Flat fee if you want for all the work. A Flat fee will include all the necessary legal services, expenses will be separate. Otherwise, we can do all the work on our normal hourly rate ($250/Hour). We can start with a deposit for the first 20 Hours in many cases and then bill on a monthly basis. We hope to see you or your representative soon at our office.