Frequently Asked E2 Questions and Answers
Author: Orlando Ortega-Medina, Esq.
(Originally published in British Expats.com on 7 June 2007)
Treaty Investor visas (“E-2” visas) to the United States are authorized on the basis of treaties between the United States (US) and approximately sixty other countries. The US Embassy in London is responsible for processing E visas for all of the United Kingdom.
Following are common questions that we frequently receive from nationals of the United Kingdom regarding this very popular visa.
Q. Do I actually need an E visa to reside in the United States if I own a US business?
A. Unless you are a US Citizen or a US Green Card holder, you must be in possession of a valid have a visa in order to enter the United States in Treaty Trader or Treaty Investor status. Further, all successful E visa applicants and their dependents are expected to present valid passports in order to be issued the visa, regardless of nationality.
Q. I received a change of status in the United States from US Citizenship and Immigration Services (USCIS). Is that all that I need to present in order to be issued an E visa at the U.S. Embassy or US Consulate?
A. No. The change of status simply allows you to remain in the United States until the expiration of the status granted. If you have been granted a change of status by USCIS and leave the U.S., you must have an E visa in your passport in order to return to the US in that status. To obtain a visa you must lodge a complete application with the appropriate U.S. Embassy or US Consulate. Adjudication of your case can vary from two weeks to six months, depending on which US Embassy or US Consulate is deciding your case.
Q. How much money do I need to invest?
A. There is no minimum amount for an investment. E-2 visa regulations state that the investment must be sufficient to ensure success of the business. As different types of businesses require different amounts of capital, the amount you will need to invest depends on your US enterprise.
Q. Do I really have to invest the money before I apply for the visa? Can’t the United States government issue me the visa first?
A. E-2 visa regulations state that the funds must be “irrevocably committed” to the investment before the visa may be issued. Therefore, you must document that your investment meets this criteria at the time of initial application; this is usually accomplished by showing that the investment has already been made. Funds can be considered to be irrevocably committed, however, if they are held in an escrow account solely contingent on the issuance of an E visa.
Q. Must the business be trading at the time I lodge my E-2 visa application?
A. Yes. The relevant E-2 visa regulations state that the enterprise must be “real and active”. Most US Embassies and consular posts interpret this to mean that the business must be actively trading at the time your E-2 visa application is lodged.
Q. How can I possibly start a business if I don’t have the visa?
A. You may enter the United States in B-1 (temporary business) visa status in order to set up (not run) your business. You may not be paid in the US while in B-1 status. If your enterprise requires someone to manage or run daily operations, you may hire individuals who are already properly documented to work in the US prior to receiving your visa. Once you have the initial commitments completed, you should apply immediately for the E visa.
Q. How long do I have to wait before I can apply for a “green card” or US citizenship?
A. An E visa is a non-immigrant visa and does not lead to either a “green card” or US citizenship. You may remain in the US only as long as your business conforms to E visa regulations, assuming you maintain proper visa and immigration status.
Q. Do I need an immigration attorney?
A. There is no legal requirement that you hire an attorney to lodge your E visa application. While many E Visa applicants choose to retain the services of an attorney to aid in the preparation of their case, others do not. It is to your advantage, however, to engage the services of a competent immigration attorney or law firm that is fully familiar with the specific procedures observed by the US Embassy or US Consulate in your home country. Failure to observe these procedures will certainly result in significant time delays, may seriously prejudice the outcome of your case, and may result in irreversible financial consequences.
Q. Where can I get information about good places to invest in the US?
A. Please contact our office for more information.
Q. What licenses and permits do I need to open and run a business in the United States?
A. Licensing and permit requirements vary by state and county and with the type of business you wish to operate. For specific information, you should contact the appropriate government offices in the locality where you plan to start your business. Alternatively, you may retain the services of a law firm to make the required inquiries on your behalf.
Q. I already own an E company and want to employ someone who is not in the US. Can employees of an E company qualify for an E visa to work in my US enterprise?
A. To qualify for an E visa as the employee of an E company, the applicant must have the same citizenship as the owners of the E company. Additionally, the job to be performed must be executive or supervisory in nature, or the employee must possess skills which are essential to the operation of the US enterprise.
Q. Can my spouse and children work in the U.S.?
A. Effective 16 January 2002, dependent spouses of E visa holders are eligible to apply for work authorization from USCIS. Children of E visa holders are not permitted to work in the United States unless they independently qualify for employment authorization, such as an E, H, or L visa.
Q. My spouse (or child) uses a different surname than I do. Is that a problem?
A. A dependent whose surname differs from the surname of the E visa holder should have on-hand proof of the relationship (a marriage certificate for spouses or birth certificates for children, for example).
Q. Can my fiancé(e), common law or same-sex partner accompany me?
A. Under US immigration law, a legal marriage must exist before one is considered to be a spouse. Therefore, fiancé(e)s, common law or same-sex partners do not qualify for derivative E visa status. Other avenues may be available to assist those applicants in such a situation. Please contact our firm for more details.
Q. My spouse and/or children are citizens of a country other than my own. Can they still accompany me?
A. The spouse and children (defined as unmarried and under 21 years of age) do not need to have the same citizenship as the principal applicant. However, dependents of E visa holders are required to have visas in order to accompany the principal applicant to the US.
Q. Will I have to appear before the US Embassy or US Consulate in person?
A. For all categories of visas, including Treaty Visas, each applicant age 14 or older must appear for a personal interview before a Consular Officer. In all cases, each applicant (including those under 14 years of age), must be physically present in the country of application at the time of issuance. Those applicants who are found to be ineligible for a US visa for criminal convictions, immigration violations, drug charges, or other similar reasons may have to appear to determine grounds of ineligibility and applicability of a waiver for any such ineligibility. In such cases the applicant must be prepared for a wait of up to 180 days weeks while eligibility is confirmed and/or a waiver requested.
Q. How long does the processing normally take?
A. Processing times vary greatly between the various US Embassies and U.S. Consulates. For example, the US Embassy in Mexico City can process an E-2 visa case in one week, while the US Embassy in London can take up to 6 months to process a case. Generally speaking, if your initial submission is not complete, then your case will not be officially “received” or it may be kicked back to allow you to provide the missing information. Upon resubmission of the case, it will generally be placed at the back of the processing queue. Please note that frequently an applicant’s submission will require clarification or additional information before the adjudicating officer can make a determination of eligibility. If this is the case, you (or your attorney of record) will be notified in writing.
Q. Will it speed up the processing if I send my passport to the US government at the time that I lodge my application?
A. No. You should not send passports until it is requested by the US Embassy or US Consulate. Submitting passports early can delay the processing of your case.
Q. I paid $100.00 USD when I applied. Why is there an additional fee for issuance?
A. The $100.00 USD fee you paid at the time of application is called the Machine-Readable Visa (MRV) processing fee. This non-refundable fee is charged to all applicants for non-immigrant visas regardless of whether the application is approved. Once your case has been approved, there may be an additional fee for issuance of the visa. This fee is called a “reciprocity fee” and is determined by the fees that your country of citizenship charges U.S. citizens for similar visas. The E visa reciprocity fee for a Canadian citizen, for example, is currently $40.00 USD.
Q. I am a citizen of the United Kingdom. Are there any special requirements or restrictions are applicable to me?
A. The US Embassy in London processes E visas for all of the United Kingdom. See the US Embassy website for further details. To qualify for an E-2 Treaty Investor Visa, citizens of the United Kingdom must actually reside in the United Kingdom, and proof of this must be submitted as part of the E-2 registration and application process.
Q. I am a citizen of Australia presently residing in the United Kingdom. Must I lodge my E-2 visa application in the United Kingdom or in Australia?
A. A citizen of one of the other qualifying treaty countries who is resident in the United Kingdom may lodge an E visa application at the US Embassy in London. The relevant treaty either may or may not allow one to lodge an application in ones home country. In the case of a citizen of Australia, filing in Australia is permitted and may save significant processing time. By contrast, a citizen of Spain residing in the United Kingdom is not presently allowed to file an E-2 visa application in Spain. Please ring our London office for more details about this.
Q. My husband purchased a business last year in the US and was granted a change of status from USCIS on to the E2 classification. The petition was filed in my husband’s name, so I understand that if he leaves the country he will lose his E2 status and will have to re-apply. I am planning to go back to the UK for a short trip. Will I lose my E2 status upon my return? Could you please also let me know what your procedures are for the preparation of an application for an E2 visa from the US Embassy London, we already have the information needed for the application but I am not sure if we can file while in the USA.
A. You are correct that neither you nor your husband will be re-admitted into the USA in E2 visa status without an actual consulate-issued E2 visa in your passports. To receive an E2 visa in ones passport requires registration and approval of the E2 visa enterprise at the relevant consulate, which in your case is the Consular Unit of the US Embassy in London.
The application can be prepared and lodged whilst you are in the United States. However, since one of the requirements of the applicable treaty is residence in Britain, you must be prepared to prove that you continue to maintain your principal residence here.
Given that the US Embassy in London has some very particular local requirements that must be strictly followed and observed, we strongly advise that you restrict your search for a lawyer to any one of the six (6) London based US immigration firms. Collectively speaking, our extensive experience dealing with the US Embassy in London and satisfying it in all its particulars makes any one of us the natural choice to handle your case.
Q. I’ve read all this information, and I still have questions. Who can answer them?
A. Please review all of the information provided on our website for any general questions about the E-2 visa. If after reviewing the website, you find that your specific questions have not been answered, we invite you to contact our office to further discuss your matter.
*
Orlando Ortega-Medina is lead counsel for the US business immigration law firm of Ortega-Medina & Associates, headquartered in San Francisco, California. The firm also maintains an EU gateway office in London, United Kingdom. Mr. Ortega-Medina has particular expertise and insight into complex L1 visa and E2 visa cases, as well as the post visa-issuance implications of foreign investment in the United States.
