E-2 Treaty Investor Visa for Irish Investors and Companies

You may be buying a business in the United States, establishing a new U.S. company or expanding an Irish business into the American market.

The investment may make commercial sense. The next question is whether the ownership, investment and role you are planning also support the immigration strategy.

For qualifying Irish investors and Irish-owned businesses, the E-2 Treaty Investor visa can provide a temporary route to live and work in the United States in connection with a qualifying U.S. enterprise.

Flynn Hodkinson advises Irish founders, investors, companies and executives on E-2 eligibility, ownership structures, employee visas and applications from Ireland.

Discuss your E-2 investment.

The E-2 Treaty Investor visa is an ideal solution for a wide variety of businesses who have made substantial investment into development of a US business, from very large multinational corporations to individual “mom & pop” investors. Those who wish to go to the US to invest in and develop an American business may use the E-2 visa.

The E-2 Treaty Investor may be a foreign company or an individual owner or group of owners of a company investing in the development of a new US enterprise or an individual or a group of individuals purchasing an existing US business.

The E-2 Treaty Investor status is available for companies that are either owned by, or traded on the national stock exchange of, a country that has a Treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty with the United States. Note that Ireland is a country with a qualifying treaty in place. See the US Department of State website for a complete list of the treaty countries.

To demonstrate the nationality of a company at least 50 per cent of the company’s shares must be owned by nationals of the treaty country. US Lawful Permanent Residents who are nationals of the treaty country and own shares in the company may not be counted towards the total treaty country ownership for purposes of the E-2 visa.

In addition to the nationality requirement, E-2 Treaty Investor visa applicants must demonstrate the following:

• • The applicant has invested a substantial amount of money in the set-up or purchase of the US business: The funds being invested must have been in the investors possession and control and put at risk into the business by the time the visa application is made. Therefore, having funds available in a corporate bank account is not sufficient on its own to meet the requirements of the E-2 Treaty Investor visa.

• • The enterprise is a real and operating commercial enterprise: The business must be developed to the point of either being open and operating or, in the situation where there is a new business, the operations are set up sufficiently so that the investor may begin to conduct business shortly after being issued the E-2 visa.

• • The applicant’s investment is substantial: A substantial investment is defined in a proportional sense for the E-2 visa. This means that depending on the amount of capital required to get the business up and running, or on the purchase price, the percentage the investor puts towards the investment will determine whether it is substantial. Large businesses requiring millions to get up and running may require a smaller percentage of investment where a smaller business will require 100% to be considered substantial. In addition, the investor must demonstrate that they have put at risk sufficient funds to ensure he or she will be dedicated to the success of the business.

• • The investment is more than a marginal one solely for earning a living: This requires the investor to demonstrate that the business has the present or future capacity to provide more than a basic living wage for the investor and his or her family.

• • The applicant is in a position to develop and direct the enterprise: The investor must demonstrate that he or she has the education or experience to ensure they have the ability to develop and direct the business. The investor does not necessarily have to show they have experience in the type of business being developed, but they will have to demonstrate enough education or professional experience or knowledge of the US business plan to convince the E Visa Officer that they have the ability to make the business a success.

E-2 Treaty Investor Employees

A great benefit of a company being approved for E-2 Treaty Investor status is that it may sponsor employees with the same nationality as the company to be transferred to the US under an E-2 Treaty Investor Employee visa. The employees must be going to the US to work in a managerial or executive capacity or have skills essential for the success of the business. In addition, the employees must provide a description of the duties while in the US as well as providing information about their previous education and experience in their field.

An additional benefit of the E-2 Treaty Investor Employee visa is that, unlike the L-1 Intra-Company Transferee visa, E-2 Employees are not required to have a non-immigrant petition approved in the United States before applying for an E-2 visa at the US Embassy or Consulate and crucially, they do not have to have been employed with the foreign company for at least one year prior to transfer to the US. This could result in a significant time and money savings for the E-2 Treaty Investor company who must send key employees to the United States quickly to get a growing business off the ground.

For more of a discussion about E-2 visa requirements see the Flynn Hodkinson blog.

Validity Period

Maximum visa validity is based on the applicant’s nationality. For example, Irish citizens may have the E-2 Treaty Investor visa issued for up to five years at a time. Typically the Consular Officer will issue the visa for the maximum period possible, however, it is in the Officer’s discretion to issue the visa for a shorter time period.

The above information is intended as a general overview and is not intended as legal advice.