E-2 Visa Capital Investment Issues

The E-2 visa is a great U.S. visa option for those from particular treaty countries. As an immigration lawyer who works with E-2 visas I can state that this visa option is often a great immigration opportunity for entrepreneurs. The E-2 visa compared to the EB-5 investor based green card generally requires a far smaller investment amount.

So what type of investment is sufficient for the E-2 non-immigrant visa immigration option? As an immigration lawyer helping with E-2 filings I can let you know that the U.S. immigration service is concerned with the issue of whether the E-2 visa investment funds are “at risk.”

The foreign affairs manual, particularly 9 FAM 41.51 N.8.1-2, provides some insight. A qualifying investment for E-2 visa purposes has to be shown to be subject to complete loss. Accordingly, if funding for an E-2 investment were to come from a loan, it must be shown that the loan is secured by personal assets of the investor as opposed to being secured by the new E-2 visa enterprise. As provided by the immigration regulations (8 CFR 214.2(e)(12), it must be “the investor’s unsecured personal business capital or capital secured by personal assets.”

So can all types of debt be used for E-2 visa immigration filings? No. Loans secured by enterprise assets are not valid E-2 visa investments.

Another issue that is important to note regarding the E-2 investment requirements revolves around the immigration service inquiring into the legality of funds used to establish the U.S. E-2 enterprise. This is actually a very similar requirement to the EB-5 investor based green card visa in the sense that any E-2 visa application should be thoroughly supported with clear evidence that the E-2 investment funds come from one or various lawful sources and to prove how the money moved from the source into the U.S. for use with the E-2 company.

What is interesting in terms of the legality of earned funds is that unlawful or criminally earned funds do not include activity that would be lawful under U.S. law. For example, and as is often the case with E-2 visas or EB-5 visa applications from countries with strict capital flow restrictions, violations of foreign capital restrictions are not considered to be funds unlawfully obtained for use in an E-2 visa application.

These are some basic E-2 visa requirements, however the E-2 visa has many intricacies that are best discussed on an individual per case basis with an immigration lawyer. Pretorius Law is experienced in handling E-2 visa cases and would be pleased to provide a free initial immigration law consultation to answer your questions.

Article categories: E-2 Visa: Treaty Investors, Entrepreneurs and Business Start-ups

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