WORK VISAS: Investor Visas (E-2 Reqs)
The focus last week (E-2 Step by Step) was on helping you determine if the E-2 program is right for you. Once you have decided you are going for an E-2 visa, this article will help you make it happen.
UNDERSTANDING E-2 REQUIREMENTS
Below are some key requirements for obtaining an E-2 Visa. For each requirement, we provide tips and types of evidence you can submit to demonstrate you meet the requirement.
Requirement 1: You must be coming to the United States to invest in a new or existing business.
| (1) Placing of capital “at risk” with the purpose of generating a profit.
(2) Your investment may be for establishing a new business venture or purchasing a existing business. (3) Your capital investment must be “substantial.” |
Requirement 2: Your investment must be in a “bona fide” enterprise and may not be “marginal.”
| (1) A “bona fide” enterprise is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit. The enterprise cannot be an idle investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise.
(2) A “marginal” enterprise is one that will not generate more than enough income to provide a minimal living for you and your family or to make a significant economic contribution. |
Here are some of the documents you can use to demonstrate your business is “bona fide”:
| • Employer Identification Number (Notice Sheet)
• Proof of Registration with State Department • Articles of Incorporation/Organization • Corporate Charter/Operating Agreement • Tax Returns • Business Organizational Chart • Business Licenses • Utility Bills, and Advertisements/Telephone Directory Listings • Escrow Documents • Lease Agreement • Proof Of Insurance |
*Tip: There is no requirement that these documents be drafted by an attorney, but you can be sure the examiner will notice if they are not. If you want your petition to be taken seriously, take care to present a professional image to the USCIS. That alone will influence whether the business appears “bona fide.”
Here are some ways to show your business is not “marginal.”
| If the business has not yet been started:
• Detailed business plan or executive summary showing that your business will produce more than a minimal living for you and your family or will create a significant economic contribution, along with any evidence that you believe will support the statements in your business plan. • Projections If the business is already in operation: • U.S. or Foreign Individual Tax Returns • Bank Statements • Financial Statements • Profit and Loss • Balance Sheet / List of Assets & Liabilities • Inventory List • Client List • Purchase Orders • Bills of Lading • Contracts Or Customer/Vendor Agreements • Payroll Summaries (i.e., W-2s and W-3) • Financial Statements • Quarterly Wage Reports Or Payroll Summaries (I.E., W-2s And W-3) |
Requirement 3: You must be in possession of the funds you will invest and the funds must be committed to your business.
| (1) You must demonstrate the money you invest is irrevocably committed to the enterprise and subject to partial or total loss in the event that the entity fails.
(2) The funds you invest must be your own. (3) The invested funds must be “substantial” in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise you are considering. |
Below are ways you can demonstrate your investment is “substantial” and “irrevocably committed”:
| • Canceled Money Orders and/or Checks
• Corresponding Personal and/or Business Bank Statements • Itemized List Of Goods and Materials Purchased for The Start-Up • Corresponding Financial Accounting Documentation • Lease Agreement • Term Sheet, Letter Of Intent, Or Memorandum Of Understanding • Bill of Sale • Escrow Documents • Loan and/or Mortgage Agreements • Capitalization Table • Valuation Analysis of Business Assets • Purchase Agreement for Business Assets • Valuation Analysis of Stock • Stock Purchase Agreement • Meeting Minutes • Stock Ledger • Stock Certificate • Corresponding Forms Of Payment For Stock |
Requirement 4: You must be able to provide the source of your funding.
| (1) You must show a clear and legitimate path regarding the source of the capital you will be investing.
(2) You must also demonstrate that the funds you are investing have not been obtained through criminal means. |
Some of the evidence you may submit to demonstrate the source of your capital includes:
| • Wire transfers, money orders, and/or canceled checks
• Foreign and domestic bank statements • Foreign tax returns • Pay records • Property records • Loan and/or mortgage agreements |
*Tip: As you can imagine, these days more than ever, the examiner will be concerned about the source of the investment funds. Discuss with your attorney before submitting your petition the best way to “trace” the source of the funds and demonstrate their origin.
Requirement 5: You must be coming to the US to develop and direct the business.
| (1) You must show that you will develop and direct the investment enterprise by demonstrating ownership of at least 50 percent of the enterprise, or by possessing operational control through a managerial position or other corporate devices. |
Some of the evidence you may submit to demonstrate your capacity to develop and direct your business could be:
| • A detailed list of all owners and their percentage of ownership. If you are one of two 50 percent owners, or own less than 50 percent of the enterprise, the documentation should be signed by all owners in order to show you have a controlling interest
• Capitalization table • Stock purchase agreement, term sheet, letter of intent, or memorandum of understanding • By-laws • Meeting minutes • Stock certificates or stock ledger • Articles of incorporation/organization • Annual report or U.S. Securities and Exchange Commission (SEC) Form 10-K • Partnership agreement • Franchise agreement |
In reality, each business is different, so you will be working with our office to tailor the package to be submitted. Please put together as much as you can, and get the documents over to our office for review.
Then, you will meet with your attorney to discuss the business plan and next steps.