The U.S. Embassy has recently announced the signing of a treaty investor agreement between the United States and Israel. As a result, beginning May 1, 2019 Israeli citizens will be eligible to apply for an E-2 visa at the U.S. Embassy in Tel Aviv. While this development is exciting, those wishing to apply for an E-2 visa should be mindful that being a national of a country who maintains a treaty of commerce with the United States is only one of the qualifications for this visa type.
In order to qualify for an E-2, or Treaty Investors visa, one must be capable of satisfying several factors. In addition to being a national of a country who has a treaty of commerce with the U.S. one must: have invested, or be in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S. and be seeking to enter the U.S. solely to develop and direct the investment enterprise. To show this intent to develop and direct the enterprise one must show at least fifty percent ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
If an individual or business is seriously interested in applying for an E-2 Visa, they should also consider several additional factors such as: whether the enterprise being invested in is a real and operating commercial enterprise; whether the applicant’s investment is substantial; the investment is more than a marginal one solely for earning a living; the applicant is in a position to “develop and direct” the enterprise; the applicant, if an employee, is designated to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and the applicant intends to depart the United States when the E-2 status terminates. To properly comprehend whether one meets these requirements requires further analysis.
To determine if an applicant has invested or is actively in the process of investing, three specific factors are considered. These factors include the source, possession and control of the funds, whether the investment is at risk (it must be) and the funds must be irrevocably committed. The commercial enterprise itself must be real and active commercial or entrepreneurial undertaking, producing some service or commodity. Further, the investment must be substantial which is determined by a proportionality test. The proportionality test determines whether an investment is substantial by weighing the amount of the qualifying funds against the cost of the business. Additionally, the enterprise must be more than marginal. A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and their family. An enterprise that lacks the capacity to generate such income but has a present or future capacity to make a significant economic contribution is not a marginal enterprise.
So, if an individual assesses these factors and believe they may qualify for an E-2 visa, what should they include in their petition? One should include evidence showing the ownership and nationality of the E-2 treaty investor. This can be shown by providing a list of investors with current status and nationality, stock certificates, certificates of ownership issued by the commercial section of a foreign embassy and reports from a certified personal accountant. Additionally, evidence should be provided which shows the investment is substantial. This can be accomplished by providing copies of partnership agreements, articles of incorporation, payments for the rental of business premises or office equipment, business licenses, stock certificates, office inventories, insurance appraisal, annual reports, net worth statements from certified profession accountants, advertising invoices, business bank accounts containing funds for routine operations and funds held in escrow.
If someone is an E-2 employee they also need to provide evidence of executive or supervisory duties or special qualifications essential to the enterprise. This can be shown by providing certificates, diplomas or transcripts, letters from employers describing job titles, duties, operators’ manuals and the required level of education and knowledge. If the petition is approved than the length of visa duration will vary by country of nationality. However, the maximum period of stay is two years per entry. Dependents are eligible for the same classification and can file for an EAD if they meet the requirements.
Those interested in applying from an E-2 visa, whether a citizen of Israel or another qualifying country, should consult an immigration attorney prior to filing. The attorneys at Reddy and Neumann are happy to assist all individuals pursuing the American dream.
By Justin Rivera
Justin is an associate attorney at Reddy and Neumann. He practices immigration law with an emphasis on H-1B visas.