The immigration regulations that provide for E-2 status for treaty investors require an investment of a substantial amount of capital. While this is not a determined amount of money and is judged on a case by case basis, the regulations do offer some guidelines that are helpful in understanding the type of investing necessary to qualify for E-2 status. Regarding the investment, the regulations state that the capital must be within the investor's possession and control, it must be at risk, and it must be irrevocably committed. If you wish to file an E-2 Treaty Investment application, contact the experienced lawyers at The Law Firm of Shihab & Associates, Co., LPA. Our firm has filed E-2 visa applications on behalf of our clients worldwide. We enjoy an exceedingly high success rate for E-2 visa applications. Whether you are a small investment operation or are a multimillion-dollar investment, our attorneys can represent your interests competently and reliably. Contact us for a consultation.
Being in possession and control of the funds is pretty straight forward, and simply means that the investor needs to already have the funds being invested and that the investor has authority over those funds. Perhaps the most obvious method of having possession and control is for the money to belong entirely to the investor. So whether the investor has been saving income or received an inheritance, if the money belongs to the investor, it is logically within the investor's possession and control. It is important to note that while inherited capital can be used for investment, inheriting a business will not be sufficient to meet the requirements as an E-2 investor.
Possession and control, however, does not mean that the funds originally belonged to the investor. Gifts or loans can be used as long as the rest of the regulations are satisfied and as long as the assets of the business are not collateral for the loan. This allows for a broader spectrum of foreign nationals to qualify, rather than restricting the status to only a handful of wealthy individuals. For example, if a couple of potential investors could not personally invest enough to meet the proportionality or substantiality requirements, the first investor could loan funds to the second so the second investor becomes an E-2 visa holder and the first investor could become an E-2 employee. Multiple investors might also consider combining funds and forming a holding corporation which could function as a principal investor, but this option is too specific for more details here. Further inquiries into this type of arrangement should be made to an attorney who focuses on immigration law.
All investments involve a degree of risk, so the risk requirement is not unusual, nor is it particularly stringent in the regulations. If the investment failed to make the anticipated returns and such failure caused the investor to lose some or all of the investment, the criteria is met. Again, it is important to emphasize that if the capital being risked is a loan, the loan must not be secured on the business' assets. The investor is free to use an unsecured loan or to use personal assets as collateral, but the risk must not be placed on the assets of the business.
In order to qualify as irrevocably committed, the capital must be in the process of being used for the purposes of the business. It is acceptable for a percentage of the funds being invested to be held in escrow or in a business bank account for the costs of operating the business and these funds may still be counted as investment funds. Naturally, it will be much easier to meet the requirement of irrevocably committed funds if the investor has already purchased an existing business or franchise. Likewise, a binding agreement mandating an attorney or escrow agent to release funds to the business upon visa approval can make this requirement less burdensome. What the regulations do not permit is mere intent or even an attempt to invest. In order to get E-2 status approval, the investor must be starting or nearly starting operations. For this reason, it can be much more difficult for an investor to qualify who is starting a new business. The investor must have already spent a significant amount of the funds in order to show that those funds are irrevocably committed.
E-2 investors enjoy a number of favorable conditions, but it is important for a potential investor to explore all the possible options regarding both immigrant and nonimmigrant statuses available. The best way to do this is to contact an experienced immigration attorney like one of the ones at The Law Firm of Shihab & Associates, Co. LPA. Their years of experience and daily involvement in all manner of immigration cases makes them ideal advocates for foreign investors, as well as domestic and international companies and individuals dealing with the various complications of the immigration process.