Requirement 2 – Investment must be in a bona fide enterprise and may not be marginal
The requirements for a bona fide enterprise are as follows:
- It is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit.
- It must meet applicable legal requirements for doing business within its jurisdiction.
- It is NOT 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.
- The investor (either a person, partnership, or corporate entity) must have the citizenship of a treaty country.
- If it is a business, at least 50% must be owned by persons with the treaty country’s nationality.
- The investment must be substantial (enough to ensure the successful operation of the enterprise), with investment funds or assets committed and irrevocable. Uncommitted funds in a bank account or similar security are not considered an investment.
- The investment must be a real operating enterprise. It cannot be a paper organization or speculative/idle investment.
- It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
- You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
A marginal (rather than substantial) enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and their family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).
Requirement 3 – Period of Stay
Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.
All E-2 nonimmigrants must maintain an intention to depart the United States when their status expires or is terminated. Unlike with tourist visas, which require the applicant to demonstrate significant social, economic, and familial ties outside of the U.S., E-2 visa holders simply must provide a statement of intent to return to their home country when their visa expires.
An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.
Would you like to learn more about your visa options as an investor? Call our E-2 visa lawyers in Cincinnati at (513) 880-9969 today. We can get started with a complimentary case evaluation.
