E-2 Treaty Investor Visa for UK Investors and Businesses

If you are investing in, establishing or acquiring a business in the United States, the E-2 Treaty Investor visa may allow you to live and work in the US to develop and direct that business.

 

For UK investors, however, putting money into an American company does not automatically create an E-2 visa route.

 

The ownership of the business, your nationality, how much capital has genuinely been committed, the nature of the US enterprise and the role you will have once you are in the United States all matter.

 

For that reason, the immigration position is worth testing before the investment or acquisition structure becomes difficult to change.

 

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 visa is available to nationals whose country has a qualifying treaty of friendship, commerce and navigation or a bilateral investment treaty with the United States. See the US Department of State website for a list of the treaty countries.

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 when the visa application is made. Therefore, having funds available in a corporate bank account alone is not sufficient 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 the purchase price, the percentage the investor puts towards the investment will determine whether it is a substantial investment. Large businesses requiring millions to get up and running may require a smaller percentage of investment where a smaller business will require 100% of the investor’s funds 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 requirement 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 a business. The investor does not necessarily have to show they have experience in the type of business being developed but they will have to have enough education or professional experience or knowledge of the business plan for the US business 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 visa 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 US Visa Solutions blog.

Validity Period

The E Visa Officer will determine the validity of the initial E-2 visa and, if the company registration is renewed, it will most likely be issued for the maximum period allowed for the applicant’s nationality. For example, British nationals may have the E-2 Treaty Investor visa issued for a maximum of five years at a time.

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

Frequently Asked Questions

1. What is the E-2 Treaty Investor visa?

The E-2 Treaty Investor visa is a temporary US visa available to qualifying nationals of countries that have an appropriate treaty with the United States.

The United Kingdom is an E-2 treaty country.

The visa may be available where a qualifying investor has invested, or is actively in the process of investing, a substantial amount of capital into a real US business and will enter the United States to develop and direct that enterprise.

A qualifying E-2 business may also be able to send certain executives, supervisors or employees with essential skills to work in the United States.

2. When might a UK investor consider an E-2 visa?

The E-2 can arise in several different commercial situations.

You may be:

  • establishing a new business in the United States;
  • buying an existing US company;
  • expanding a UK-owned company into the American market;
  • making a significant investment into an existing US enterprise;
  • acquiring a US business and needing a founder, director or executive on the ground;
  • or investing personally in a US business that you intend to develop and manage.

The visa question should be considered alongside the transaction itself.

If a particular ownership percentage, nationality structure or management role is necessary for the E-2 strategy, discovering that after the acquisition has completed can make the immigration problem much harder to solve.

3. Can British citizens qualify for an E-2 visa?

The United Kingdom has E-2 treaty status with the United States under the Convention that entered into force in 1815.

There is an important UK-specific qualification.

The Department of State states that the treaty applies to British territory in Europe and to “inhabitants” of that territory, defining an inhabitant as someone who actually and permanently resides there and has their domicile there.

For many UK-based British nationals this does not create a practical issue, but nationality and residence should be checked carefully where a British citizen has been living permanently outside the UK.

4. Can a UK company use E-2 to expand into the United States?

Potentially.

An E-2 enterprise does not have to be owned by one individual investor.

A UK company may establish or acquire a US enterprise and potentially use the E-2 structure where the relevant treaty nationality and other requirements are satisfied.

This can be particularly useful where a UK business is expanding into America and needs an executive, manager or employee with essential skills in the United States.

The ownership chain needs to be analysed carefully because treaty nationality ultimately depends on the nationality of the qualifying owners.

5. How long can a British E-2 visa be valid?

Under the current Department of State reciprocity schedule, an E-2 visa issued to a qualifying British national can be valid for multiple entries for up to 60 months.

Visa validity and the period of authorised stay in the United States are not the same thing.

The visa allows the holder to seek admission during its validity period. The period for which the person is admitted into the United States is determined separately.

6. Can an E-2 investor bring their family?

A spouse and unmarried children under 21 can generally accompany or follow the principal E-2 holder in derivative E status.

E dependent spouses are generally employment authorised incident to their valid E spouse status, subject to having appropriate evidence of that status for employment-verification purposes.

This can make the E-2 particularly relevant where the investment and the family’s relocation are being planned together.

7. Can I buy an existing business with an E-2 visa?

Yes. An E-2 investment can involve purchasing an existing US business, provided the investment, ownership, nationality, control and other E-2 requirements are satisfied.

8. Can I start a new business with an E-2 visa?

Potentially. The enterprise must be sufficiently developed to constitute a real commercial undertaking rather than merely a speculative idea or passive investment.

9. Can my UK company send employees to the US under E-2?

Potentially. A qualifying E-2 enterprise may employ people of the required treaty nationality in executive, supervisory or essential-skills positions.

10. Does an E-2 visa give me a green card?

No. E-2 is a temporary nonimmigrant category and does not itself provide permanent residence. Other immigrant visa options may need to be considered separately if permanent residence is the long-term goal.

11. How long is an E-2 visa valid for UK citizens?

The current US reciprocity schedule permits qualifying E-2 visas for British nationals to be issued for multiple entries for up to five years.

12. Why work with Flynn Hodkinson on an E-2 visa?

E-2 work is a particular area of experience for Flynn Hodkinson’s Managing Partner, Janice Flynn.

Janice has worked in US visa and nationality law for more than 20 years in Chicago and the United Kingdom and regularly advises individuals and multinational companies on US visa strategy. Her practice includes particular experience with E-1 Treaty Trader and E-2 Treaty Investor matters.

Flynn Hodkinson has advised both individual investors and companies using the E-2 route, including helping a multinational biofuels company obtain E-2 treaty investor status alongside E-2 visas for its personnel and family members.

For investors, the firm’s role is not simply to prepare an application.

It is to look at the investment, ownership, nationality, intended role and timing together so that potential immigration problems can be identified before they interfere with the commercial plan.

Do you need the help of a US immigration lawyer?

Please schedule a call to initially discuss your situation with one of our lawyers

and possibly book a consultation with a US visa and nationality lawyer.