Consular Processing E-2 Treaty Investor Visa Applications

Consular Processing E-2 Treaty Investor Visa Applications

E-2 visa category can be used for a whole spectrum of sizes and types of businesses from small mom and pop businesses to very large multi-national corporations. This is also what can make it a very difficult visa category when analysing whether a business will meet the requirements of the E-2 visa. Its one of my favourite visa categories because it can be very useful when trying to strategize on what will be the best visa category for my individual or corporate client.

Procedurally, making an E-2 Treaty Investor visa application is very different from other employment-based US visa categories such as the H, L and O visa categories. Most notably, the Embassy or Consulate will not accept a US Citizenship & Immigration Services (USCIS) E-2 petition approval when a person applies for an E-2 visa. The positive is that you can side-step nasty Requests for Evidence that the USCIS have been issuing for most petition-based employment visas. On the other hand, the negative is that there is the additional pressure at the visa application interview because you cannot go to the Embassy with an approved petition. Instead, the E Visa Officer at the Embassy or Consulate reviews your business to determine whether it is eligible for E-2 Treaty Investor status.

Once your company is approved as an E-2 business, the companys employees with the same nationality as the company may then apply for E-2 employee visas if they will be working in an executive or managerial capacity or those with skills essential to the US business.

Each Embassy or Consulate has different filing E-2 Treaty Investor visa application requirements, procedures and processing times and check the specific Embassys web site for specific instructions. Usually an application is filed prior to or at the E-2 visa application interview. The E Visa Officer has lot of discretion to determine whether a business qualifies for E-2 Treaty Investor status. The key to determining that a business meets the requirements of E-2 status is to know that there are no bright line rules for each business.

After determining that the business is likely to be approved for E-2 status, the most important part of my job as an immigration lawyer is to prepare my E-2 Treaty Investor client for what to expect at the interview. Particularly at the US Embassy in London, the applicant will be asked questions to demonstrate that he or she has the ability develop and direct the business. For multinational companies this is not usually an issue but for small businesses they need to be prepared to be asked detailed questions about what they plan to do to develop the company once they are in the US. Credibility is the key to success.

The E Visa Officer, who usually comes from a business background, will ask your client questions about the company’s investment, the business plan and how the business is going to be or continue to be profitable.

In addition, my clients will know the E-2 Treaty Investor visa requirements as they relate to the client’s US so they will know what kind of standard they will be held up to at the interview. In a nutshell, a company may qualify for E-2 status if an E Visa Officer is satisfied that:

  1. There is an E-2 treaty between the US and the investors country of nationality.
  2. The investor or employee applicant is a national of the treaty country. The investor must also demonstrate that he or she has operational control over the business.
  3. The business is real and operating.
  4. A substantial investment has been made. The FAM outlines a proportionality test to determine whether the investment is substantial.
  5. The business is more than a marginal one and has the present and future capacity to generate more than a minimal living for the investor.

Determining whether your business will meet the E-2 Treaty Investor visa requirements is a very fact specific analysis. Contact Janice Flynn to discuss whether you may qualify for a US work visa today.