An E2 visa applicant needs to show and prove that they meet all the qualifications and requirements to be able to obtain an E2 Visa.

If you’re planning to apply, we have included the FAM citation for each E2 Visa qualification or requirement below to help you:

1. 1. 1. You Must “Direct and Control” the Business

         9 FAM 402.9-6(F)

         The easiest way to prove that you direct, develop, and control the business is through the ownership of 50% of the E2 business.

         However, take note that alternatives are also available. You may own less than 50% of the business provided that it’s owned by a majority of persons who have the same E2-qualifying citizenship as yours. It is deemed that public companies have the nationality of the stock market where they are traded.

         It’s important to also note that the applicants for an E2 Treaty Employee specialist worker visa need to have the same nationality as the E2 treaty investor, but they are not required to make any investment to qualify for the visa.

      2. National of an E2 Treaty Country

         9 FAM 402.9-4(B)

         The most important requirement when applying for an E2 Visa is that you must be a citizen or national of a qualified E2 treaty country. The US Department of State maintains a list of qualifying countries which you can use to check if your country is included.

         Since US treaties vary by nation, there are different E2 visa requirements for some countries.

         E-2 visa applicants who obtained citizenship by making a financial investment in a qualified E-2 country need to be “domiciled” for three years before becoming eligible for an E2 Visa. This requirement, however, is subject to exceptions and “workarounds”

      3. Invested or In The Process of Investing a Substantial Amount of Capital in a Qualifying Business

         9 FAM 402.9-6(B)
         9 FAM 402.9-6(D)

         The E2 treaty investor needs to make a substantial investment in a U.S. business. There’s no set minimum amount to be considered substantial, but the adjudicator may calculate the substantiality depending on the proportion between your invested funds to the total value of the business.

         The capital must be sufficient enough for the operational success of the enterprise. For example, an investment of USD 60,000 that is substantial for a small food business may not be substantial enough for a large business.

         The consular officers, however, usually expect for are directed to look for USD 100,000 investment though there is no minimum investment required.

         Investments don’t have to be in the form of cash. Moving inventory to the U.S. business or using intellectual property also counts as an investment.

      4. Invest in an Irrevocably Committed Investment the Funds

         An E2 qualifying investment must be irrevocably committed to the E2 business. Investments that are speculative or passive don’t qualify.

         There are immigration lawyers who took this to mean that the investment must already be spent on business activities at the time of the application. However, it is clear that such is not true. If the funds are placed in an escrow account, this doesn’t need to be spent at the time of the E2 visa application, however, the treaty investor applicant still needs to show considerable business expenses made to get the company at least imminently operational at the time of the filing of the application.

         When you place funds in an escrow account, this irrevocably commits the funds to the business and thus meets the requirement. If the funds are in a business bank account, however, they don’t count for the visa application. Take note that the funds committed to an escrow must be sufficient to fund the expenses in the business plan.

         The good thing about an escrow account is that you will be able to get your investment back if your application doesn’t get approved. Escrow accounts are usually held by major financial institutions.

      5. No Marginal Investments

         9 FAM 402.9-6(E)

         It is required that the investment must not be considered a “marginal investment”. This means that it must generate income beyond to provide a living for the investor and their family. If the E2 investment has the capacity to make a significant contribution to the U.S. economy within 5 years, then the investment is not considered marginal.

         An easy way to demonstrate that a business is not “marginal” is by employing workers. An application that involves only future jobs may be questioned by the consular officer or the USCIS.

      6. The E2 Business must be “For Profit”

         9 FAM 402.9-6(C)

         Charities and entities under 501(c)(3) don’t qualify as E2 businesses. It is required that the E2 business is an “active for-profit” business. “Active” means that the business allows commercial activity, while “for-profit” means that it must produce goods or offer services. If the investment is passive or is a non-profit business, then it will not qualify for the visa.

      7. Lawful Source of Funds

         You must be able to prove that you obtained your E2 investment through lawful means or sources. In practicality, fewer questions are asked about the source of an E2 applicant’s funds than in an EB-5 visa application.

      8. Intention to Depart

         9 FAM 402.9-4(C)

         Once you have filed your visa application, you will need to file a statement that you intend to leave the U.S. once your E2 status ends.

         The Foreign Affairs Manual (“FAM”) guides consulates when adjudicating or reviewing E-visa applications. 9 FAM 402.9-4(C) states that an E2 applicant does not have to maintain ties with their home country to prove their intent to depart. They may even sell their residence and move their household to the U.S. The applicant’s mere statement of unequivocal intention to depart the U.S. upon termination of their E-2 status is sufficient for the issuance of an E visa. However, in practice, consular officers may occasionally question this.