E-2 Treaty Investors: New Business Registration
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.
E-2 Registration or E-2 Primary Investor Requirements:
Requisite Treaty
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.
Nationality
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.
Real and Operating
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.
Investment and Substantiality
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.
Marginality and the Business Plan
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.
Position to Direct
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.
Intention to Depart
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.
Online Visa Application and Interview
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.