The Definitive E2 Visa Investment Guide - Frear Law

THE DEFINITIVE E2 VISA INVESTMENT GUIDE

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Benjamin Frear, Esq.

Immigration Lawyer For Entrepreneurs & Investors

Table of Contents — The E2 Visa Investment Guide

INTRODUCTION—The E2 Visa Investment Guide

There is understandably a lot of confusion surrounding the E2 visa investment requirements. In the course of my practice, I am commonly asked:

  • How much is the E2 Visa investment amount?
  • Is there a minimum investment for E2 Visa for applicants?
  • Can I use an E2 visa loan?

These are all great questions that I am going to answer in this post. I will also:

  • Highlight some key E2 Visa requirements  to help you understand how to make a qualifying E2 investment 
  • List some common E2 visa investment expenditures
  • Discuss problematic scenarios that frequently arise regarding the investment
  • Offer some E2 visa investment examples

e2 visa investment basics

Some E2 Visa Basics

In order to understand how to make a qualifying E2 visa investment, it will help to understand some of the basic E2 visa investment requirements. 

These requirements can be found in the Foreign Affairs Manual(FAM) which is used by US government officials to determine if an applicant qualifies for E2 visa classification. The basic requirements are as follows:

  • You must have invested — or be in the process of investing — lawfully obtained funds in a real and operating business.
  • The investment must be “substantial.”
  • Your investment must be “at risk.”
  • You must demonstrate that your business will go beyond supporting yourself and your family.
  • You must have control over the investment funds.

“Real & Operating Commercial Enterprise”

While the language in the FAM seems to imply that your business must be operational before you apply for the E2 Visa, this is not a requirement. While it is ideal if the business has already launched — new businesses that have not yet launched can also qualify if the other E2 visa requirements have been met.

What Does “Substantial” Mean?

At first blush, the “substantial” requirement for the E2 visa investment sounds incredibly vague. However—if you continue to read the requirements—some guidance emerges that helps you make sense of this requirement. 

First of all, the regulations make it clear that there is no minimum investment for E2 visa applicants.

Instead, the required amount will depend on the startup costs of the business in which you are investing. The FAM states…

investments constituting 100 percent of the total cost would normally qualify for a business requiring a startup cost of $100,000…an investment of $10 million in a $100 million business may be considered substantial, based on the sheer magnitude of the investment itself.”

This guidance tells us that lower investments require a higher level of commitment. 

So — I always advise clients to start by clearly determining the amount of capital that is needed to launch the business. Next — if the startup costs are less than $100,000 — try to commit 100% of the capital to the business before applying for the E2 visa. Such a course of action will help you prove that your investment is “substantial.”

Putting Your E2 Visa Investment “At Risk”

The “at risk” requirement means that your investment must be committed(ie. subject to partial or total loss) BEFORE you apply for the E2 Visa. 

Understandably— for most investors—this is the most intimidating aspect of the E2 visa process. 

Who in their right mind would dump a lot of money into a US business before knowing if they will be allowed into the country to manage it?

Unfortunately, this is a risk that E2 visa applicants must take. 

The reality is that the more money you can commit to the business before making the application, the better your odds of a successful E2 visa application.

An E2 Visa Loan Can Count as “At Risk” 

It may be comforting to know that an E2 visa loan can qualify as an “at risk” investment—as long as the loan is not secured by the assets of the business. 

The FAM specifically states:

“…indebtedness collateralized by the alien’s own personal assets, such as a second mortgage on a home or unsecured loans, such as a loan on the alien’s personal signature may be included, since the alien risks the funds in the event of business failure.”

Loans From Family

Family members can be the source of your E2 visa loan. However, the source of their funds will be subject to the same scrutiny that applies to you as the principal applicant. This raises the question: Is your family member comfortable with this? 

They probably think that they are already doing you a huge favor by lending you the money. Perhaps they value their privacy. Maybe they feel that it is demeaning to have to prove that their money was lawfully obtained. Whatever the case may be — you would be wise to discuss these issues with your family members at the beginning of the process.

Jointly Held Funds: Who Has Control?

Occasionally, E2 visa applicants run into problems when loaned money is held in a joint bank account with other family members. An adjudicator may question whether money held in a joint bank account was under the sole control of the applicant.

In order to avoid confusion you can take some additional steps. For example, you could have the joint owners confirm by a sworn affidavit that their interest in the funds are intended to be a gift or a loan. This could clear up confusion and avoid a delay or a denial.

The Prohibition Against Marginal Businesses 

Marginal businesses do not qualify for the E2 visa. 

A business will be considered marginal if it will solely support yourself and your family. This prohibition has the largest impact on E2 visa applicants who have made smaller investments—since these investments(ie. $15,000-$20,000) are less likely to realistically support the hiring of personnel.

Fortunately, this prohibition does not mean that you have to plan to build a giant empire. A small business with a few part time employees will suffice. 

Common E2 Visa Investment Expenditures

There are many types of expenditures that can count as part of your E2 visa investment. Essentially, you can count anything that is used to launch your business. Below I list some common expenditures that are incurred by E2 investors.

Professional Fees

Oftentimes—towards the beginning of an E2 Visa journey—the applicant will hire some professionals. These professionals may include, lawyers, tax professionals, business plan writers, consultants, etc. The money that is spent on such professionals will count towards the E2 Visa investment.

Equipment & Real Estate Expenses

It probably seems obvious that equipment that you purchase for your business counts as an investment. But—you may not realize that you can also count previously purchased property that is transferred to the US. For example, let’s say that you have a work vehicle in your home country that is being used in a similar business. You could transfer that vehicle to the US for business purposes. Then, you could count it as part of your E2 visa investment.

In addition to equipment, you may need a physical location to operate your business. If so, you can count your real estate expenses. In the event that you are renting your space, you can consider paying rent in advance to increase your investment total.

The Purchase Price/Franchise Fees

This is not a shocker, but the sale price paid for an existing business will count as an investment. Franchise fees will count as well.

Since these expenditures usually make up the bulk of the E2 Visa investment, a lot of people are nervous about committing this money before the E2 Visa is issued. If you are apprehensive about potentially losing this money, you can consider putting the purchase price or franchise fee in escrow. Money that is held in escrow can be considered committed funds as long as the issuance of the E2 Visa is the only condition of the escrow agreement. 

Personnel Expenditures 

Once you set up your business, you may be ready to open your doors before you have your E2 visa in hand. If you are in this position, you could hire employees to operate the business since you will not be permitted to do any hands on work at this point.

Having employees in place is beneficial to the E2 visa application process for multiple reasons. First, it demonstrates that the E2 enterprise is real. It also shows that the business will create job opportunities for US workers. And as a final bonus, the money that you pay employees can be counted towards your investment.

problematic e2 visa investment scenarios

Problematic E2 Visa Investment Scenarios

There are certain investment scenarios which I cover below that commonly lead to denials.

Problematic Scenario #1 Less Money Mo Problems

The rapper, The Notorious B.I.G. famously expressed— “mo money” means “mo problems.”

In the E2 context, the opposite is true. The lower the investment amount, the more difficult it is to prove that you have made a qualifying E2 visa investment.

So—what should you do if your startup costs are low?

Well—you could rent class A office space in a major city. Then, you could fill it with expensive furniture and top of the line equipment. All of that excessive spending shows commitment right?

Yes—but if that is not a good move for your business—don’t do it!

Instead, I would look for other expenditures that could help make your business successful.

Here are three areas that where you could invest…

  • Professional Services

Most businesses could benefit significantly from legal strategy, tax planning, business consulting etc.

  • Real Estate

Some businesses would benefit from some form of physical space. If you are going to need an office or store front, you could sign a lease and prepay to raise your investment total.

  • Hardware/Software

Technology is the life blood of small and solo businesses. I simply do not know how I could survive without some of the tech that I use on a regular basis. If your business could benefit from software, hardware or other technology, consider committing purchasing these things before you apply.

If you have spent all of the funds that you need to succeed—and your investment is still modest— then you could put additional reserves in the company account that are intended for operations(including personnel).

To read a post that is dedicated to this topic, click here.

Problematic Scenario #2 Fear of Spending

Many E2 visa applicants fail due to the fact that their investment has not been fully committed to the business. 

The straightforward advice for people in this group is to

  1. Spend some money
  2. Reapply

This is difficult in practice since— as I acknowledged earlier — it sounds crazy to spend money on a US business without knowing if you can enter the country to run it.

STRATEGIES FOR DEALING WITH THE “AT RISK” REQUIREMENT

In order to help you deal with this nerve racking requirement, I want to give you some strategies that will allow you to make an “at risk” investment while simultaneously minimizing the prospect of a catastrophic financial blow.

Strategy #1 Select an E2 Business that Doesn’t Require a Huge Investment

This one is obvious— but the first thing that you can do to minimize the prospect of a huge loss  is to select a business that does not require a huge amount of capital. The thought of losing $100,000 is terrible, but you may be able to bounce back from such a loss. A $4 million loss on the other hand may be extremely difficult to deal with.

Strategy #2 Put Funds in Escrow

So, let’s say that you identified an investment that you want to make for the E2 Visa. Maybe you are going to open up a franchise. Or, perhaps you are going to buy an existing business. 

For these types of investments, you will be able to put part of the investment funds in escrow to reduce your financial risk. With an escrow agreement—you can make the release of the funds contingent upon the issuance of the E2 visa. 

For example— if you are buying a franchise— you could put the franchise fee in an escrow account. Upon issuance of the E2 visa, the funds will be transferred to the franchisor. If the E2 visa is not issued, the funds would be returned to you. 

While this is a great option—It is important to note that escrow agreements are not acceptable for E2 visa purposes if there are other conditions of the escrow agreement—that are not related to the issuance of the visa. Such conditions will lead to a finding that your funds are not “at risk.”

Strategy # 3 Transfer Items that were previously purchased

Another way to protect yourself is to transfer previously purchased items that will be used in the new business. 

For example, if you previously purchased equipment, you could possibly count that previous purchase as part of the investment in the new venture. This is possible as long as:

  1. you can show that item will be used for business purposes
  2. the item has been transferred to the United States
  3. you can prove that you made the purchase and
  4. you can demonstrate the current market value of the item

E2 Visa Investment Examples

Below, you will find a few E2 visa investment examples. 

As you read the examples — considering the requirements that are discussed above — think about whether they meet the investment criteria.

Tim: The Accomplished Social Media Manager

Tim is a social media manager who lives in New Zealand. He runs a successful agency and wants to launch a similar business in the US. 

Tim has a lot of things going for him. He has a successful track record and $150,000 in the bank account of the US business. Thus far, Tim has spent about $1,000 on creating his entity and designing his website, but he has a clear plan for making the business work.

Will his E2 visa application be successful?

No. This is a classic example of an application that will be denied because the investment has not been placed at risk.

Sara: The Aspiring Photographer

Sara has always dreamed of leaving her investment banking job in the UK to pursue her dream of opening a photography business in Miami. 

As someone without professional experience as a photographer, she attended workshops in the evening to sharpen her skills. 

She hired an immigration lawyer early in the process who advised her to determine her costs and commit the investment funds.

Sara took the advice and paid for everything that she needed to launch. She created a business entity, hired an agency to produce a fantastic business plan, paid for web design services. She also paid for some facebook ads and purchased all of the hardware and software that she planned to use in her business. After all of the money had been spent, the total investment was $35,000 plus $20,000 in reserves that she planned to use for advertising and hiring an assistant.

Will Sara’s E2 visa application be successful?

In my opinion, while Sara lacks experience, her investment qualifies for the E2 visa because she has spent all of the money that is required to launch. 

Conclusion — The E2 Visa Investment Guide

Hopefully this information has been helpful!

While it is great that there is no minimum investment for E2 visa applicants, determining the proper E2 visa investment amount requires thoughtful consideration. 

In general, you should take these steps:

  1. Determine the startup costs for your business
  2. Spend the investment on all of the things that you will need to launch

In order to avoid making costly mistakes — these tasks are best completed under the careful guidance of one of the many knowledgeable US immigration lawyers.

Good luck on your E2 visa journey and please feel free to reach out to me at ben@frearlaw.com if you have any questions.