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THE E2 VISA CHEATSHEET FOR CANADIAN ENTREPRENEURS

E2 Visa Cheatsheet

for Canadian Entrepreneurs

charlotte immigration lawyer

Posted by Ben Frear, US Immigration Lawyer for Startups and Entrepreneurs

If you are interested in coming to the United States from Canada to start a business, then the E2 visa may be worth exploring. This E2 Visa cheatsheet lists some key aspects of the visa. It is designed to help you decide if you can deal with the drawbacks and meet the requirements of the E2 Visa.

STEP ONE: DECIDE IF THE BENEFITS OUTWEIGH THE DRAWBACKS

Key Benefits of the E2 Visa

  • Indefinite Stay in the US–You can live indefinitely in the US as long as you continue to run a business that meets the requirements of the E2 Visa
  • Speed—You can usually enter the US within a few months after you have all of your documents gathered
  • No Minimum Investment–Unlike the Eb5 Program that requires an investment of 500,000-1,000,000 there is no minimum investment for an E2 Visa
  • Spouses can work
  • Children can attend school

Main Drawbacks of the E2 Visa

  • No Direct Path to a Green Card–Unlike the Eb5 program that is designed to award green cards to those who have benefited the US Economy, E2 Visa holders(who also benefit the economy tremendously) cannot go directly to Green Card status
  • Children lose status at the age of 21–foreign born children of E2 Visa holders will eventually have to leave the country at the age of 21 unless they can adjust status to a different visa classification
  • Solo Lifestyle Business do not work for the E2 Visa(See Marginality Rule Below).

STEP TWO: DECIDE IF YOUR INVESTMENT COULD QUALIFY FOR THE E2 VISA

Requirements of the E2 Visa

  • Substantial Investment Requirement–To qualify for the E2 Visa, you must have invested(or be in the process of investing) a “substantial amount” in a US business. Substantial means that the amount is sufficient to make the business a success.
  • The Proportionality Rule–The amount of money that has been invested must represent a large percentage of the overall necessary investment. For a business that requires an investment of $50,000-$100,000 you should aim to invest 100% of the required funds before applying for the Visa. For a business that requires a much larger investment(ie. $5,000,000) then you will be able to pass the proportionality test even if the invested amount(that has already been invested) represents a smaller percentage of the overall investment.
  • Marginality Rule–The business that you are opening in the US must be projected to employ US workers. If not, it fails the marginality test.
  • At Risk Investment Requirement–Your investment in the business must be subject to partial or total loss. In other words you must show that you are all in! You cannot just show that you have money sitting in a bank account. Your money must be committed to the business before you apply.
  • No Unlawfully Obtained Money—It is pretty obvious that the money that you plan to invest in your E2 business can not come from drug running, theft, the sale of banned arms or other illegal endeavors. Nonetheless, it is important to understand that you will have to demonstrate that your money was lawfully obtained.

STEP THREE: UNDERSTAND THE APPLICATION PROCESS

Typical Documents to Support the E2 Visa Application

  • The Business Plan–The most important document that you submit will be your business plan. This document will demonstrate how you meet many of the requirements that are mentioned above.
  • The Cover Letter–The cover letter should concisely state how you satisfy the requirements of the E2 Visa.
  • Form DS-160 Confirmation Page
  • Form DS-156E
  • Passport Biographical Page
  • Bank Documents showing that lawfully obtained money was transferred to a US Business Account and that business related purchases were made from the account
  • Purchase Receipts and Invoices
  • Entity Formation Documents(ie. Articles of Incorporation, Meeting Minutes, Etc.)
  • Escrow Agreements and Account Information
  • Chamber of Commerce Support Letter(This can be difficult to obtain but can be very persuasive)
  • Advertising Materials
  • Invoices issued to clients
  • Tax returns
  • Net worth statement from a CPA
  • Sale agreements
  • Commercial Lease
  • Utility Bills
  • Website Screenshots

Overview of the Application Process

  1. Gather your documents
  2. Submit Form DS-160
  3. Create an account and pay visa fees
  4. Submit the application package to the US Consulate in Toronto(for specific filing requirements see: https://ca.usembassy.gov/visas/treaty-trader-and-investor-visas/supporting-new-documentation-for-new-cases/)
  5. Correspond with the consulate regarding the interview and submit any additional information that they request
  6. Attend an interview
  7. Enter the US with an E2 Visa Stamp to Run your Business

KEY RESOURCES

Website for the US Consulate in Canada explaining the E2 Process: https://ca.usembassy.gov/visas/treaty-trader-and-investor-visas/

The Foreign Affairs Manual Guidelines for E2 Visas

https://fam.state.gov/fam/09FAM/09FAM040209.html

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