You can only obtain an E-2 visa if you are an investor, director, manager or key employee of a foreign (e.g., Russian or Ukrainian) company that has made significant investments in the USA. In this case, at least 50% of your company’s shareholders must either reside outside the US, or be in the US on E-2 visas.

The managers of a foreign company will meet the visa conditions only if they are citizens of the country where their company is registered.

In order to obtain an E-2 visa you will have to prove that the investments have either been made already, or that your company is nearing the completion of all negotiations.

Obtaining an Е visa is the best way to invest in an American company. However, only citizens of specific countries that have entered into respective agreements with the US can apply for an E visa (see a list of these countries below).

One of the following investments must be made in order to obtain an Е visa: a private investment in order to buy or open a small business; a large corporation’s investment in a new or existing multi-million dollar company.

In addition, you may invest in any type of business, including small service companies.

Unlike the L-1 status, the Е status does not require that there be a relationship between a foreign company and a domestic one. You also do not need to have any work experience in the foreign company. The company applying for E status may be a completely new and independent American company.

Also unlike the L-1 status, the Е status is usually considered at the US Consulate without the need for pre-approval by the INS. The E status is granted for a period of up to 5 years (depending on the nationality of the business), even for a brand-new office. (The nationality of a business is determined by the nationality of the owner, which is, in its turned, determined by his citizenship). The effective term of E status is not limited – you may continue to extend it for as long as the necessary conditions are being met, i.e. the capital investment process continues and the trade in the US keeps going.

Thus, E status can allow you to work in the US for many years without applying for permanent residency. At the same time, the US immigration service allows individuals with E status to have “dual intentions” for immigration, which is why the E status is commonly considered to be the best non-immigrant status.

Substantial initial investments are determined by: a) the minimum market value percentage of the US company, b) the minimum percentage of the total amount of funds needed to open a new company.

Companies of any type and size – from small retail stores, restaurants or service companies to major businesses – may be the object of investment. (Please note that the US company and the investor do not necessarily have to be in the same line of business; a US company may be doing business in an area that is totally new to the investor.)

As a rule, investments used to buy an already existing business or to build a new one are deemed to be substantial if they are in the range of $1 million and up. However, these are not official figures: the amount of investment depends on the market value or expenses related to opening a business. You can obtain E status if the amount of your investment is lower than the unofficial minimum but is in line with the value of the business in the US (a small office in the service sector). On the other hand, you may be denied E status if the investment, while higher than the unofficial minimum, adds up to too small a percentage of the total costs related to the acquisition and opening of the company.

The amount of initial investment depends on the total amount spent on the acquisition and opening of the company, and on its size. For a small business, you must contribute the entire or virtually the entire amount of the selling price or of the opening costs. A larger company requires a smaller percentage of its value as the initial investment.

Investments are not restricted to cash.

The required minimum of initial investment may include not only cash, but other real assets, such as equipment and inventory sent from overseas, etc. In some cases investment includes real estate used by the company, financial expenditures (e.g., payment of legal fees), or money intended to cover the company’s expenses that is available in a bank account.

All funds related to investment are considered non-returnable. You must have either spent them already or be planning to spend them for specific purposes, and be prepared to lose them if the business suffers a loss.

Investments may also include loans, as long as you (or the investment company) are bound by a guarantee and responsibility for this loan, and are fully liable for the loss of funds. This represents your share of the risk.

Loans secured by US company assets are not considered a part of the required minimum investment.

Since initial investments must be in line with the minimum percentage of the total cost of acquisition and opening of the company, it is very important to estimate their amount correctly.

If you are applying for an Е visa based on the purchase of an already existing company, then your expenses represent “the exact market value”, i.e. the price for which such a company may be sold.

When applying for an Е visa based on establishing a new company, you have to keep in mind that the value of the company also depends on its type. The Consulate officer will be guided by the amount of expenses typically required to set up an office of this type.

Usually, a private investor (or an investment company) will apply for E-2 status after the investment has been made. (You can come to the US on a visitor’s visa in order to make the investments, but you may not work for the company or manage it in the US until you receive your E-2 status.)

Please also note that the immigration service does not trust those people coming on a B-1 visitor’s visa with the preplanned intention to change their status to E in the US. (This situation will be reviewed in more detail further down the line.)

While in the process of investing, you can also apply for E-2 status even if you have not completed the process. In this case, you must provide proof that you are actively engaged in the process of investing.

For example, you can produce an office space lease, show a bank account, a portion of which went to cover certain expenses or was capitalized, provide equipment purchase or inventory transfer documents, or evidence of having hired employees, etc.

By the same token, you can receive E-2 status if the investments in an existing business stipulated in the contract have not been made fully as yet. For instance, a portion of the investment funds can be handed over to a third party on condition that they be returned to the applicant in order to be invested after he receives his E visa.

Investments that are only planned but not guaranteed will not be deemed sufficient grounds to receive E-2 status. For instance, the availability of a large amount of money in the bank while you are looking for an object of investment is not sufficient for an E-2 status application.

A private investor (or investment company) with E-2 status must exercise active control over the company’s business and not just be an employee of the American firm.

Ownership of more than 50% of the company’s shares provides such control. In a joint venture where two partners own equal interest in the company, neither partner must have absolute control of the company’s business and, accordingly, both partners must have the right to veto the decisions of the other partner.

The owner of less than 50% of a company’s shares may exercise control over its business. Such conditions are fixed by making an agreement with the other co-owners of the business or by distributing shares. In this case you will get the E status as a manager and not as a minority shareholder in the company. A private investor (or investment company) holding less than 50% of company shares may exercise control over foreign investment in a major public company in the US.

Please remember that, in any event, at least 50% of the American office must be owned by the private individual (or company) from a country, with which the United States has signed a treaty on the right to receive E status. The applicant’s experience is also taken into consideration in order to determine his or her administrative skills. We would advise you to include in your resume all of your previous employment history and educational background that can present you as an experienced leader, executive director or manager.

The nationality of the employee seeking E status must be the same as the nationality of the business. For instance, only German citizens may be granted an E visa in order to work for a German company.

Aside from the owner/investor, executive directors and managers who are clearly holding managerial positions may also apply for E status. (As we noted earlier, partners who have no direct control over their company’s business can be classified in this category.) The employees’ applications must be accompanied by their resumes and educational credentials, plus an explanation of why these employees are needed to manage the US company.

A young employee without sufficient work experience or appropriate education will not be qualified as a “necessary employee”. However, please note the following: unlike the rules for obtaining an L-1A visa, the applicant does not need to have any working experience in the company that has a connection with the foreign enterprise. This enables the individual owner (or company) to acquire or open a business in the USA, which has no relation whatsoever to the foreign company, and hire a new manager to work for the US company with an E status.

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