E-2 Treaty Investor visa applicants make a significant contribution to the US economy, and are permitted to come to the US as temporary residents. They do this under treaties between the United States and their countries which foster economic relations between the two countries.
E-2 Treaty Investors for a new business registration evidence their significant contribution by showing substantial investment in a US company and a willingness and ability to come to the United States to develop and direct the business.
The first investor or primary investor is usually a founding member of a company or a first employee to register the employer as a business in a given consular jurisdiction. Their application registers the business as an E-2 employer at the consulate. Some consulates do not have a registration process for the first E-2, but larger embassy posts do.
The other type of E-2 visa applicant is a subsequent essential employee. This page focuses on primary investors.
Using a lawyer for your E-2 new business registration is favored by consular officers. Having a lawyer reflects well on an E-2 client. There is actually a stigma against those who apply without a lawyer on their application! Do reach out, if you are considering a move to the United States to support the expansion of your business to the United States, or to found a business in the United States.
The first requirement to be eligible to apply for the E-2 visa is that a requisite economic or commercial treaty exists between the US and the country you are applying from. British citizens qualify under a Convention which came into force in 1815 between the UK and the US. Uniquely, for British citizens, there is a residence requirement under the terms of the Convention. UK citizens must be able to show residency in the UK at the time of their application. Evidence of this includes pay slips, ongoing leases or mortgages, or proof of payment of utility bills in the UK.
Both the individual and the business must have the nationality of the treaty country to qualify. This is simple to prove for the individual; they just need to have a passport from the treaty country. If an individual has two or more passports, they can choose to apply for the visa on the one that has a requisite treaty with the US.
The nationality of the business is determined by the nationality of the majority owner of the business. If there are two equal owners, the business is classified as having both nationalities. For bigger companies with no clear majority owner, the fact that the company is on a certain stock exchange can sometimes determine its nationality.
The nationality of the business may change when the ownership majority changes due to new investment or other mergers and acquisition transactions. This can affect the continuing validity of all E-2 visa holders’ visas for a given employer.
The US E-2 registration company must be a real and operating commercial entity. “Real and operating” status is evidenced by the US E-2 company’s hiring staff or contractors, the US E-2 company having contracts with US entities and the US E-2 company having the necessary licenses to do business in the US. Materials which market to clients like a slide deck or conference sales materials can also show that a company is real and operating. Obtaining this evidence can be tricky, as the individual does not yet have a visa to work for a US entity in the United States. An attorney can assist on questions surrounding developing an E-2 business on visa free travel, ESTA travel authorization, or a visitor visa.
The individual must have invested in, or be in the process of investing in, the business to qualify for this visa. One way of assessing the value of the investment can be by totaling expenses paid to get the company up and running. For small companies, it is best to have 100% of the investment needed to get the company up and running, already spent and invested. 100% is clearly substantial. For a larger company, a substantial investment can be a smaller percentage of the total needed to get the company up and running. Substantiality can look like $100,000 for smaller businesses, and $10 million for a business valued at $100 million. So, substantiality is a sliding scale based on what percentage of the costs the primary investor spent to make the business operational. For businesses providing services, it is more likely that substantiality will be shown by an individual contributing 100% of the investment, as the start-up costs will be substantially lower than those for a business producing and selling goods.
The business must be more than just marginal to qualify an individual for the E-2 investor treaty. Marginality is indicated if a business plans to generate only enough income to provide a living to the investor and their family. So self-employment is not an option for an E-2 investor visa application.
Marginality is assessed looking at present, as well as, future capacity to generate income. A business that does not generate enough current income but has future capacity to contribute substantially to the US economy is classified as more than marginal.
A business’s capacity to be more than marginal can be shown in a five-year business plan that demonstrates either sufficient income or significant economic contribution. It can demonstrate these things by showing plans to hire people in the US, therefore growing the business operations and contributing to the US economy by providing jobs.
The applicant must be able to demonstrate that they are in a position to control and direct the business operations of the company in which they have invested. This is dependent on the size and nature of the company that they have invested in, so there is no clear general threshold. They must have a reasonable standard of education and experience to be qualified for the role of managing the business. Moreover, the individual must show that they have the time and willingness to make the direction of the business their full-time job. This can be demonstrated by having no other part-time jobs that take up a substantial amount of their time or effort.
An E-2 applicant must include in their application evidence of an intention to depart the US when their status ends. This does not need to be shown by having property or a job to come back to after outside of the US. A signed statement of an intention to leave when the visa status terminates is sufficient. However, an applicant may be rejected if they have had a family-member submit an I-130 petition on their behalf to qualify for family-based immigration through consular processing. This is because a consular officer may believe that this demonstrates an intention to live and work in the US more permanently, undermining the integrity of one’s intention to depart. Form I-140 petitions can also defeat a claim that the E-2 primary investor intends to depart at the end of their E-2 visa status, especially if the E-2 business lack employees or is threatening insolvency.
As part of the E-2 visa application, an online visa application on Form DS-160 must be completed at the US Department of State Consular Electronic Application Center (CEAC) website. After the DS-160 is created, an applicant can add the DS-160 number to an account on the embassy's Interview Appointment platform. On this platform, the applicant can pay the E-2 visa application fee. The application and supporting evidence are submitted by email. The email address is provided to the applicant when the applicant creates their appointment account.
As part of the email submission, the attorney will include a cover letter explaining that all of the requirements are met. After an E-2 visa analyst at the US embassy completes their review, the embassy notifies the applicant. The applicant can then schedule an interview appointment on the Interview Appointment Platform. The interview must be scheduled within 90 working days of the first notification they receive that their application has been reviewed. In Fall/ Winter 2024/2025, the London US Embassy was reviewing applications in about four months before inviting an applicant to an interview. Although an application should be as complete as possible, applications filed with US embassies are not required to be approvable when filed. So at a consular post with a long review period, the applicant can still take time to improve their application with additional evidence of restructuring for an E-2 registration etc. If the business continues to grow and succeed, that new evidence can be used as well to strengthen the application at the time of the interview.
Navigating the process to obtain green card or an immigrant visa through a U.S. citizen or lawful permanent relative petitioner can be done via various paths. Here we introduce the path called consular processing, or processing via the National Visa Center and an interview at a US embassy or consulate abroad.[1] Understanding the steps will help simplify this journey.
Processing times can range from four to twenty-four months, and once you choose a path, you cannot switch to a shorter one. Talk to an attorney before choosing a path.
The first step in the process is for a US citizen or lawful permanent resident relative to file the I-130 petition to the United States Citizenship and Immigration Services (USCIS). Petitioners are divided into non-preference / immediate relative categories, and preference categories. Marriage partners are immediate relatives. The processing time for the I-130 petitions varies, and can be checked at the USCIS website. Petitions can be filed either electronically or by hard copy. The convenience and efficiency of electronic filing is recommended as a method to reduce processing times.
A petitioner should indicate the embassy or consulate where the beneficiary will interview for their immigrant visa.
Once the petition is approved by the USCIS, it is sent electronically (if filed electronically) to the National Visa Center (NVC). The NVC is part of the Department of State, and it does some of the work of the US embassies and consulates abroad.
The NVC will begin reviewing the case only after fees, forms, and financial documents have been paid and provided. These fees include the Immigrant Visa Application (DS-260) Processing Fee and the Affidavit of Support Fee. You can see the fees current at the time of writing of this article here. After payment, these fees can take 10 calendar days to process, after which the NVC portal will open for submitting the DS-260, related civil documents and the Form I-864/ Affidavit of Support.
After the fees are processed and documents received, the applicant must complete Form DS-260, the Application for Immigrant Visa and Alien Registration, through the Consular Electronic Application Center (CEAC) website.
After the DS-260 is submitted, the visa applicant's clear, color scans of the required civil documents are requested to be uploaded to the portal. Incorrect or incomplete submissions may result in delays, as additional or corrected documents may be requested after the NVC does its review. A recent technical hurdle in this step involves issues with the NVC server and data storage, leading to portal instability and refusal to accept uploads. Civil documents must be translated into English and certified as good translations, if they are not in English. Examples of civil documents to scan and upload include:
At the interview stage months later, a printed copy of the DS-260 confirmation page must be brought to the embassy interview, along with original copies of the civil documents.
The petitioner must submit the Affidavit of Support (Form I-864) and indicate their financial responsibility for the applicant. The sponsor must be domiciled in the U.S., which can be challenging to prove, if they reside abroad. A sponsor must be able to show an intention to move back to the US if living abroad. Evidence of this can include having a job offer and searching for housing in the United States, and US ties like a bank account. Contact Chavin Immigration Law Office for guidance on demonstrating domicile while living abroad, especially if you lack a W-2 or employment in the United States.
The Affidavit of Support and related financial documents prove the sponsor’s ability to support the applicant. The financial documents include Internal Revenue Service tax transcripts for the past three years or income evidence, such as Forms 1099 or W-2. Tax transcripts are summaries of Form 1040, the US income tax return. Tax transcripts can be downloaded from an account created on the Internal Revenue Service website.
Once all documents are uploaded, the immigrant visa applicant hits submit. NVC reviews the materials and decides whether the applicant’s file is documentarily complete or documentarily qualified. When the filing is documentarily complete, the NVC notifies the applicant. The NVC can then coordinate with the relevant consulate or embassy to schedule an interview.
The next steps of the process involve preparing for and attending a visa interview. In the case of an immigrant visa application with the US Embassy in London, the embassy mails an invitation to the applicant with an interview appointment date and a request to register themselves with an appointment account online. This account can be used to reschedule an interview after an appointment date has past. The letter from the US Embassy has a lot of information on other preparation and interview details. For example, the applicant is directed to have a physical exam at the London doctor’s office licensed for US visa related exams.
The interview process can differ among Consulates or Embassies. Therefore, for more detailed and accurate guidance on how to navigate the interview stage of an immigrant visa application, see the website of the appropriate US Consulate or Embassy.
Footnotes
[1] Consular processing is in contrast to adjustment of status using Form I-485, which is done fully inside the United States, when the beneficiary of a family based immigration petition is located in the United States.
Both an adult and a child born outside the US must prove that they possess a legitimate claim to U.S. citizenship in order to get a first US passport. The longer the wait to apply for a first passport, the more difficult it can be to gather the needed evidence to make a case for US citizenship. The evidence becomes significantly more difficult to gather with time, especially after the US citizen parent and other witnesses to the activities of their life pass away. In general, the child (or adult child of a US citizen born abroad) must prove that the transmitting US parent spent five or more years in the United States before his birth. The specific requirements vary. For example, the physical presence requirements for the child of a married couple differ from those of a child born to an unmarried, single parent. If you think that you may qualify for a US passport as a person born abroad to a US citizen and would be interested in claiming those rights, contact a U.S. immigration lawyer.
For those whose U.S. Citizen parent has passed away, producing evidence of physical presence in the U.S. can be challenging. Let’s take Jamal (name changed to protect his privacy), Jamal was applying to gain U.S. citizenship through his mother after both of his parents had passed away sadly. To prove his mother had lived in the U.S. for longer than five years before he was born, Jamal used the “A file” (immigration and citizenship papers) of his mother, signed before she passed away. Chavin Immigration Law Office obtained the A file using the Freedom of Information Act. The A file showed that Jamal’s mother had been living in the U.S. for eight years. However, upon meeting with the U.S. Embassy American Citizen Services to review his application, the consular officer was not fully convinced of the legitimacy of the certifications made by his late mother on the A file. The officer requested further evidence. Jamal was able to produce a sworn statement from another relative to confirm his mother’s presence in the U.S. Fortunately, this new evidence was accepted by the U.S. Embassy, and Jamal received his U.S. passport in the mail six months later.
For those whose parent(s) renounced U.S. Citizenship before 1980, they may be able to obtain U.S. citizenship through this parent. In the 1980 supreme court case Vance v. Terrazas, U.S. citizenship law changed from saying that pledging allegiance to a foreign country counted is a voluntary form of expatriation, to say that U.S. citizenship can only be relinquished when the citizen acts with the intent to expatriate[1]. Several years ago, Chavin Immigration Law Office dealt with a case like this where Mary (name changed), was attempting to gain U.S. citizenship through her mother who had renounced her citizenship before 1980. Mary’s mother had renounced her citizenship when gaining another country’s passport to go and live with her husband, a foreign diplomat. Because Vance v. Terrazas changed the law under which Mary’s mother’s citizenship was revoked, Mary successfully applied to have her mother’s renunciation reversed. Once this was done, Mary was able to obtain U.S. citizenship through her mother.
The law has recently changed for those whose parents were not married at the time of their birth. The children of both unwed citizen mothers and unwed citizen fathers must show that their US citizen parent had five years of physical presence in the United States, two of which after fourteen in order to qualify for transmitted US citizenship[2].
In November of 2016, Luis Ramon Morales-Santana and his lawyer presented a case to the US Supreme Court in which Morales-Santana argued that the physical presence requirements for an unwed citizen father violated the Equal Protection Clause of the US Constitution’s Fifth Amendment because they differed from that of an unwed citizen mother. Morales-Santana’s father left the U.S. territory twenty days before his 19th birthday, just missing the requirement of ten years in U.S. territory, five after age fourteen. This requirement differed substantially from that of unwed mothers which required only one year of physical presence in U.S. territories for children to qualify for transmitted citizenship. In June 2017, the US Supreme Court decided Sessions v. Morales-Santana. They found the law discriminatory and ordered that it be changed[3]. The new rule states that all children born to unmarried parents must show the same amount of physical presence in the US. One year will no longer be enough to transmit US citizenship.
[1] Vance v. Terrazas, Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/444/252/case.html (last visited June 27, 2018).
[2] Acquisition of U.S. Citizenship by a Child Born Abroad, U.S. Department of State, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Acquisition-US-Citizenship-Child-Born-Abroad.html (last visited June 27, 2018).
[3] Sessions v. Morales-Santana, Oyez, https://www.oyez.org/cases/2016/15-1191 (last visited June 27, 2018).
The B-1 visa and its ESTA equivalent enable employees of international businesses to visit the USA in furtherance of trading relationships--to meet with clients, negotiate contracts, and attend conferences. As long as the stay is limited and the business conducted is limited to essentially liaison activities, the B-1 and ESTA are a great, economical means of maintaining an ongoing trading relationship. Sometimes, however, a more durable or more flexible presence is required. In such cases, businesses should consider the E-1 Treaty Trader visa.
By regulation, the E-1 visa is specifically for "individuals who will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien's behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national."
Like the E-2 Treaty Investor visa, the E-1 Treaty Trader visa is only available to nationals of countries that have a bilateral treaty with the United States that enables such visas to be issued. That's why it is called a Treaty Trader.
In the UK, the treaty that enables E visa eligibility is the United Kingdom Friendship, Commerce, and Navigation Treaty of 1948 governing trade between the United States and The United Kingdom. Notably (and unique among such agreements), the UK-US treaty specifically limits eligibility not just to UK nationals, but to UK nationals residing in the UK. This can become cumbersome when dealing with complex corporate ownership issues or when individuals have spent significant periods of time outside the UK.
Looking the regulatory requirements, the essential elements are:
One further requirement is that the visa applicant have an intention to depart the United States upon the termination of E-1 status. The E-1 visa applicant must affirm his/her intention to depart from the United States upon the termination of E-1 status. For most applicants, this is done simply by providing a signed statement. If the applicant has applied for an immigrant visa or has had a petition filed for an immigrant status in the past, this may be an issue.
To see if the E-1 visa is right for your service offering or product based business, please schedule a consultation.
All family based immigrants need an Affidavit of Support (Form I-864) as part of their application. This helps immigrant visa applicants to overcome the Public Charge ground of visa ineligibility found in the Immigration and Naturalization Act Sec. 212(a)(4). Those who process through the National Visa Center submit their Form I-864 and supporting documents there first. Those who direct consular process through the US Embassy in London submit their Form I-864 and supporting documents at their interview. Those who adjust status in the United States submit their Form I-864 with the National Benefits Center when they file Form I-485.
Note: Foreign nationals who apply for a US immigrant visa or adjust status on a basis other than an alien relative petition do not have to worry about the public charge ineligibility. These include most employment based immigrants, including the investment based EB-5, and diversity visa (DV) applicants.
Fiancé visa applicants have a lower standard to meet to overcome the public charge inadmissibility grounds. Their petitioners may compete Form I-134 instead of Form I-864 at their consular interview. They can also submit pay stubs or bank statements.
The most recent year’s US tax return is absolutely mandatory as a supporting document with the I-864. The adjudicators prefer that the Form I-864 sponsor submit the tax return copy in the form of a tax summary called a “tax transcript.” The latter are available for free upon request from the US Internal Revenue Service; those with tax records in the US can request a tax transcript online at www.irs.gov.
Policing tax reporting. Immigration agencies do not share tax details, but they do police reporting. Failure to submit the most recent US tax return from the sponsor will be an obstacle to visa issuance. The US Embassy in London for example will block the immigrants’ application approval after an interview, until the petitioner files a tax return and the applicant submits it to the post. Likewise, the National Benefit Center will block issuance of the Employment Authorization Document and Advance Parole cards for adjustment of status applicants.
Sponsors with regular employment evidenced by a W-2 in the United States or a P60 in the United Kingdom will have the easiest time with the Affidavit of Support
Sponsors with self-employment should provide in addition to their tax return, evidence to support the gross income stated there. This evidence can include:
1/ the financial statements of the company to see the income generated by it, especially if the owners are paying themselves in dividend income;
2/ evidence of how the sponsor is making the income reported, e.g., contracts for their work;
3/ evidence that the sponsor’s entity is a going concern, with brochures from their work, business cards, business stationery etc.
Income from non-taxable sources does not appear on the tax return as “taxable income,” so it must be documented in other ways.
1/ Social Security Income can be documented with bank statements. The sponsor can highlight the payments from the SSA Treasury. The bank statements will show electronic transfers to the sponsor’s bank account in the amount of the “Federal Benefit Deposit” from SSA Treas. There will be a transaction reference number and a reference in prose to “Soc Sec.” Each monthly payment will generally be identical in a given year.
2/ Trust Fund Beneficiary Income. Trusts are used to give income to the beneficiaries in a tax efficient manner, either from living or passed away trust creators. The trust creator has already paid taxes on the money that they earned and later put in the trust. The money comes out tax free when it goes to the beneficiary. The trust money that pays for the household expenses of the beneficiary can be documented with:
3/ Legal Settlements. Money from personal injury settlements, worker’s compensation, medical malpractice or other civil action may not be taxable. Evidence that can be used to document are:
4/ Life insurance proceeds. You can document life insurance proceeds with a letter or documentation from the life insurance company and bank statements for the past three years. There are instructions / information on www.irs.gov on why these do not appear on tax returns.
5/ Alimony and child support payments are not taxable. The payor pays taxes on the money he earns on his own return. Evidence that can be given:
6/ Disability proceeds. Document them and check with the sponsor’s US tax preparer or accountant for a letter as to why they are not on the tax return as income.
If you require assistance with your Form I-864, Chavin Immigration Law Office offers an initial consultation to strategize a solution and then follow on assistance, if necessary. Ms. Chavin has years of experience in helping UK citizens with the US visa system.