E2 Visa Application

E-2 status is exclusively reserved for citizens of nations that maintain a qualifying treaty of commerce and navigation with the United States.

• The individual investor must hold the nationality of a treaty country. If the applicant is a corporation or business entity, at least 50% of the ownership must be verifiable by nationals of that treaty country.
• In cases of dual nationality, the applicant must consistently use the passport of the treaty country throughout the entire E2 visa application process, including all interviews and filings.
• This requirement extends to essential employees of the treaty enterprise; they must also share the same treaty country nationality as the principal investor.

The investor must commit a "substantial" amount of capital to the U.S. enterprise, with the definition of "substantial" being relative, not absolute.

• The investment is assessed via a proportionality test, comparing the committed capital to the total cost of establishing or acquiring the business. Generally, a higher percentage of investment is required for lower-cost businesses.
• The capital must be irrevocably committed to the business, meaning the funds must be placed at risk and utilized for legitimate business expenditures, such as equipment purchases, inventory, or startup operational costs. Uncommitted bank funds are insufficient.
• Crucially, the investment must be in a bona fide, active commercial or entrepreneurial undertaking. Passive investments, such as holding speculative real estate or unmanaged stocks, are strictly prohibited under E-2 regulations. A detailed paper trail verifying the legal source of all invested funds is a mandatory part of every E2 visa application.

A key legal hurdle for an E2 visa application is proving that the business is not "marginal"—it cannot exist solely to provide a minimal income for the investor and their family.

• The enterprise must establish the present or projected capacity to generate significant revenue and profits that demonstrably exceed the living wage requirements for the investor and their dependents.
• A strong predictor of non-marginality is the intent and ability to create new employment opportunities for U.S. workers. The business plan should clearly outline staffing needs and hiring timelines.
• A comprehensive, well-researched five-year business plan is mandatory. This document serves as the primary evidence, detailing marketing strategy, revenue forecasts, operational budgets, and an undeniable path to significant expansion and profitability in the New York market.

The principal investor must demonstrate their clear capacity and intent to actively "develop and direct" the operations of the treaty enterprise.

• The investor must have executive control, typically secured through holding at least 50% ownership or, in complex corporate structures, having an indisputable, high-level managerial authority.
• The applicant must prove they are entering the U.S. to take a hands-on managerial or executive role, responsible for major policy decisions and day-to-day strategic direction, not simply monitoring a portfolio.
• Documentation such as résumés, prior business success records, and educational credentials must be provided to substantiate the investor's necessary expertise to successfully lead the New York enterprise, a critical component of the E2 visa application.

The filing location dictates the immediate benefits and future flexibility of the E-2 status.

• Consular Processing is the most common path for investors residing outside the U.S. The petition is submitted to and adjudicated by a U.S. Consulate abroad. Successful adjudication results in an E-2 visa stamp in the passport, which grants the essential benefit of travel flexibility.
• Change of Status (Form I-129) is an option for individuals already lawfully in the U.S. and is filed with USCIS. While this grants legal E-2 status within the United States and immediate work authorization, it does not issue a visa stamp.
• Any investor who obtains E-2 status via a Change of Status and subsequently travels internationally must undergo consular processing abroad to obtain the physical E-2 visa stamp required for re-entry into the U.S.

Extension applications are comprehensive re-examinations of the enterprise's status, demanding evidence of sustained success and adherence to the marginality rule.

1. Proof of Continued Business Activity: Renewal packages must include updated financial statements, federal and state corporate tax returns, bank statements, and evidence of new contracts or leases to prove the New York business is actively thriving.
2. Continuous Non-Marginality: The investor must explicitly demonstrate that the business has not only continued operating but has successfully progressed beyond any potential marginality and is actively fulfilling its economic forecasts.
3. Extension Term: E-2 status is typically renewed in two-year increments. As long as the enterprise continuously satisfies all regulatory criteria, there is generally no limit to the number of extensions an investor may pursue.