To qualify for an E-2 (Treaty Investor) visa, an alien applicant must meet specific requirements:
- The alien must be a national of a treaty country;
- The alien must have invested, or be investing, a substantial amount of capital in an enterprise in the U.S.;
- The alien must be seeking a U.S. visa solely to develop and direct this investment enterprise. This can be proven by evidencing that the alien owns at least 50% of the enterprise, or that he/she possesses operational control of the enterprise through a managerial position, etc.
The USCIS considers investment to be the placement of capital, by the treaty investor, into an enterprise with the intention to generate profit. Such investment can include funds or other assets. Significantly, the capital must be subject to loss if the investment fails. Additionally, the treaty investor must prove that the funds were not obtained from criminal activity. Please note that the USCIS defines a “substantial amount of capital” with consideration to:
- The cost of investment compared to the total cost of either purchasing an established enterprise or establishing a new one;
- Whether the investment is large enough to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Whether the investment is large enough to make it likely that the treaty investor will successfully develop and direct the enterprise. Notably, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
Finally, the investment enterprise CANNOT be marginal. In other words, the investment enterprise must possess the present or future potential to generate more than enough profit to provide for the living expenses of the treaty investor and his/her family. Notably, a new enterprise can still qualify even if it does not currently meet this requirement. However, in such cases, the enterprise must prove this capacity within five years of the granting of the E-2 Treaty Investor Visa.