Five 2023 E-2 visa Updates and Trends

1) E-2 Visa Availability for Portuguese Citizens

As many of you may know, the E-2 visa is only available to citizens of certain countries. This is clearly one of the disadvantages of the visa. If you are a citizen of the UK, Canada, Australia, France, Italy, Spain, Germany or one of many other countries that have longstanding E-2 treaties with the US, then you will be able to pursue this visa. Unfortunately, if you are an entrepreneur from Brazil, South Africa, India, or another country that does not have the requisite treaty, then you will not be able to pursue this option. 

While it is frustrating to see the US economy miss out by not allowing all foreign national entrepreneurs to pursue the E-2 visa, it is encouraging to know that E-2 eligibility is continuously expanding. For example, in 2019, Israel and New Zealand were added to the list. And this year, Portuguese citizens will be able to start applying for the visa.

As of 2022, the vast majority of European countries were already covered by an E-2 agreement with the notable exceptions being Portugal and Greece. Now that Portugal will be added to the list, 35 of the 44 countries in Europe will be covered in 2023. 

2) E-2 Visas After Obtaining Citizenship Through Investment

The same act that gave Portuguese citizens the opportunity to pursue E-2 visas also took the option away from other deserving entrepreneurs. 

In the past, if citizens of non treaty countries wanted an E2 visa, they could explore the possibility of obtaining investment based citizenship in a third country that has the E2 treaty with the US. Then they could use the new citizenship to apply for the E-2 visa.

The AMIGOS Act has essentially closed the door on this opportunity. The relevant language of the act states…

…under this bill, if an alien who has never received an E visa became the national of an E visa-eligible foreign country by making a financial investment in that foreign country, that alien must have been domiciled in that foreign country for a continuous period of at least three years at any point before applying for an E visa.

So, even though it is still an option to use citizenship obtained through investment to apply for the E-2 visa, the requirement of residency will prevent many people from filing.

3) E-2 Visa Processing Timelines Continue to Improve

Now that we are moving past COVID, many consular posts have worked through their backlogs that massively grew during the pandemic. 

For example, the consular posts in the UK and Canada now have reasonable timelines for E-2 investor interviews. And while other posts struggle to catch up, it appears that the timelines are improving and we are getting close to returning to pre-pandemic wait times. 

As a result, I anticipate that we will see fewer change of status applications filed with USCIS. Increased incentive to file applications for E-2 visas abroad — as opposed to filing for a change to E-2 status from within the US — is a good thing, since: 

1. Having an E-2 visa is typically much better than having E-2 status and
2. Reducing the number of applications filed with USCIS will enable them to devote resources to adjudicating other types of applications

4) Business Trends Create Challenges and Opportunities

As of 2023, small businesses in the United States are experiencing a variety of trends that are shaping the landscape for entrepreneurs and business owners across the country. While E-2 visa investors will benefit from the relatively strong economy, they will also face unique challenges in the coming year.

LOW COST BUSINESSES

For example, it has never been easier and cheaper to start and run a business in the US. Technology can help small businesses streamline operations and reduce both operating and labor costs. Also, now that remote work is becoming more common, many new businesses will not require hefty investments in office space.

While the reduced costs to create and run businesses is a positive development, it will create challenges for some E-2 visa investors due to the fact that E-2 applications based on lower investments tend to receive more scrutiny.

Now, it is absolutely true that there is no specific minimum investment required to obtain an E-2 visa. However, over the past decade, many consular posts have been closely scrutinizing investments that are under $150,000. The main rationale behind this scrutiny is tied to the notion that businesses that are going to create jobs — which is an E-2 requirement — will start with an investment that is over $150,000.

This creates a problem in light of the reduced costs required to start a US based business. If you have an idea for a business with low startup costs that will utilize technology to reduce your need for personnel, you may have a great business idea but a poor likelihood of obtaining an E-2 visa. 

If you are interested in starting a low cost business, you should be careful to plan in such a way that will increase the likelihood of a successful E-2 visa process.

SHRINKING LABOR POOL

In addition to the challenges that low cost businesses present, another area of concern for E-2 investors may be the shrinking of the US labor pool. When you apply for the E-2 visa, you have to show that your business is not marginal, meaning that your business has to create jobs.

If you invest in a business that will need US workers, that is great. But it may be difficult for you to find them. And if you can’t find workers, that could have a massive negative impact on the profitability of your business.

5) The US Economy and Impact on E-2 Visa Demand

Let’s talk about the state of the US economy and how it may impact the demand for E-2 visas

Thankfully, the US economy has been steadily improving since the 2008 financial crisis. Our unemployment rates have dropped significantly, and GDP growth has been steady. 

We have also seen some positive developments in areas like renewable energy and technology. 

Also, while it is too early to know for sure, our government seems to be doing a decent job of tamping down inflation without creating a major decline in our economic output. This represents an advantage over other countries.

If you are someone in Europe or another part of the world who is concerned about economic issues such as inflation, housing prices or job opportunities, then you may be interested in seeking opportunities to create wealth by investing in a US business.

Conclusion: 2023 E-2 Visa Trends and Updates

So there you have it. Those are five 2023 E-2 visa trends and updates. 

If you are interested in the E-2 visa, I highly encourage you to reach out to one of the many talented E-2 visa lawyers that you can find across the globe.

Thanks for your time!