The E2 Visa offers a great opportunity if you are interested in opening a business in the US. Wise entrepreneurs seek the guidance of an immigration lawyer to help guide them through the tricky E2 Visa process. Attorneys who practice in this area are oftentimes asked about the required E2 visa investment amount. Our clients are oftentimes excited to hear that there is no minimum investment required to obtain the E2 Visa. While the lack of a minimum required investment is a beneficial aspect of the E2 Visa, it does not mean that it is easy to obtain. On the contrary, a significant number of E2 Visa applications fail every year because the applicant can not show that they made a “substantial” investment in the business. This post discusses the substantial investment requirement for the E2 Visa as well as some of the other requirements in order to help you avoid some of the mistakes that so many others have made in the past.
No Minimum for the E2 Visa does not equal Minor Investment
The first thing that you should understand is that the lack of a minimum investment for the E2 Visa does not mean that it is easy to meet the “substantial” investment requirement. You can not simply form an entity, put a thousand dollars in a bank account and stroll into the consulate to pick up your E2 Visa. Instead you have to submit a painstakingly detailed application package that demonstrates that all of the requirements have been met.
The “substantial” investment requirement for the E2 Visa
One major aspect of the E2 Visa to understand is that the investment must be “substantial.” Unfortunately “substantial” is not specifically defined in the regulations. However, there is some guidance that can be found in the foreign affairs manual(FAM). The FAM says that substantial means that the investment is:
(1) substantial in a proportional sense(proportionality test)
(2) large enough to ensure your financial commitment to the success of the business
(3) of a magnitude to support the likelihood that you can successfully develop and direct the business.
The FAM goes on to explain the proportionality test as a kind of inverted sliding scale. There are some examples provided by the FAM that demonstrate the concept of the inverted sliding scale. Under the inverted sliding scale concept, lower cost businesses require a higher percentage of the overall investment. Higher cost businesses on the other hand require a lower percentage of the overall investment. For example, if your business start up costs are $100,000, an investment of $100,000(100%) will be sufficient. However, if your business startup costs are $100,000,000, a 10% or $10,000,000 will enable you to secure the visa.
The main take away is that if the start up costs of your business totals $100,000 or less, you should aim to invest all of the money that is required to make the business operational. If your startup costs run into the millions of dollars, your investment will be considered substantial even if it constitutes a smaller percentage of money that is required to get the business off the ground.
Other Requirements of the E2 Visa
In addition to understanding the “substantial investment” requirement, you should also understand some of the other hurdles that you have to clear to obtain the visa.
Your country must have the required E2 Visa treaty with the US
Sadly the E2 Visa is not available to citizens of every country. It is only available to citizens of E2 Visa Countries. The two most notable countries that are not on the list are India and China.
Funds must be “lawfully obtained.”
Also, you have to prove that you have invested a substantial amount of “lawfully obtained” money in a US business. This requirement puts the burden on the applicant to show that you did not get the money from drug dealing, arms smuggling or other unlawful means. To demonstrate that the funds were lawfully obtained, it is common to submit tax return documents or other evidence of income, documents related to the sale of a business or property and financial records. It is usually acceptable to use money that was gifted to you for E2 Visa purposes. However, in such a situation you would still have to show that the gifted money was lawfully obtained.
One person businesses are not acceptable for the E2 Visa
Unfortunately, the business in which you made the investment cannot be a one person lifestyle business. Creating such a business is appealing and easier than ever given all of the available technology and options for freelance services. Many people are now intentionally designing businesses to support one person. With a one person business you can avoid all of the hassles of employing and managing staff. Although running a lean solo business may sound appealing, it is not acceptable for E2 purposes. Having an employee or a plan for hiring an employee is essential for long term E2 Visa success.
The invested money must be “at risk” to obtain the E2 Visa
The money that you have invested must be “at risk” meaning that it has already been committed to the business and is subject to partial or total loss. A classic example of money that is not risk is money that is parked in a business bank account. The money is not at risk because you can transfer it to your personal account whenever you want. At risk funds include money that has already been spent. For example, money spent on marketing, inventory, franchise fees, the purchase of an existing business and legal services can all be used to show that you have made an at risk investment. This is scary because your money will be committed to the business before knowing if you are allowed to enter the country to actually run the business. One way to protect yourself is to put funds in escrow. For example, if you are purchasing a franchise, you can put the franchise fee in an escrow agreement. If the visa application is approved the franchise fee is transferred from the escrow account to the franchisor.
Before you consider the E2 Visa you should understand all of the requirements. Although the lack of a minimum required E2 investment amount sounds appealing, it is oftentimes quite challenging to prove that your investment qualifies for the visa regardless of the amount. In order to reduce your stress and improve your chances of success it is important to talk to immigration lawyer about your particular situation. Good luck with your E2 Visa journey!