Treaty Investor (E-2) visas are sometimes a good option for foreign investors from certain countries who wish to travel to the United States to start a business. The investor makes his application to the U.S. consulate in his or her home country, and must include documentary evidence showing the following:
1. Majority ownership of the company;
2. The type of business in which the company is or will be engaged;
3. The source and type of the financial transactions that make up the investment (the investor must place personal assets at risk in the business);
4. The prospects of the investment’s success;
5. The duties that will be filled by employees, managers or executives who will be travelling to the United States to work in the business; and
6. The qualifications of the employees, managers, or executives (degrees, licenses, and prior work experience in the field).
See 8 C.F.R. s. 212(e)
The following is a non-exclusive list of documentation that may be used to prove these elements:
1. Majority ownership:
A. A certification from the secretary of the corporation (notarized statement) to the effect that a specific qualifying foreign national owns the requisite number of shares or ownership interest.
B. Minutes of the First Meeting of the Board of Directors, which should recite the ownership shares of the members of a small corporation or LLC.
C. Independently Certified Statement from the Company’s accountant attesting to ownership shares.
2. The Type of Business (it should be an active investment)
A. This can be be shown by the business activities listed in the articles of incorporation, business brochures and promotional materials, copies of business licences, and/or purchase receipts for inventory, equipment or other capital investments required to run the business.
4. The Investor Must Demonstrate the Source of His or Her Invested Funds, and That They are ‘At Risk’ in the business venture.
A. Each source of the total funds invested must be separately documented. Copies of all loan agreements must be provided, and they must demonstrate the investor’s personal liability. Money transfers into the U.S. can be shown with bank statements showing electronic transfers from foreign to U.S. bank accounts, or by receipts for withdrawals from foreign accounts, coupled with deposit receipts into U.S. accounts.
i. These funds must be placed into a corporate account of the business in order to be counted as “at risk” in the enterprise (they cannot be placed in the investor’s individual bank account).
ii. Supply the documentation from customs officials for any cash that was brought into the U.S. to fund the business.
B. The treaty investor must be in lawful possession of the assets being invested, and must have received the assets via lawful means: (provide documentation that the funds were received by a gift, as compensation, for wages [include tax documentation for source of funds], inheritance, savings, etc.).
4. Receipts for the Transactions That Can Be Counted as “Investments” in the Enterprise:
A. All purchases, capital improvements (e.g., renovations), advertising buys, office equipment purchases, along with statements valuating the items purchased to run the business.
5. Evidence of the Investment’s Prospects (i.e., It Will Generate Significant Profits And Create Jobs) (In other words, the investment is “substantial” rather than “marginal,” see 22 CFR §41.51(b)(1); 9 FAM 41.51 N11)
A. Copies of any business contracts that have been signed
B. Copies of letters, e-mails or other correspondence showing realistic client prospects, and/or negotiations.
C. U.S. workers on the company payroll (document payment of salaries and/or wages)
D. If this other evidence is lacking, you may want to hire a consulting firm to do a market analysis, however primary evidence of prospects (such as contracts or ongoing negotiations) is preferable.
6. Duties To Be Fulfilled by the Alien
A.The employer’s sworn affirmation, plus job descriptions, corporate personnel charts, to show managerial or executive duties, or essential unique skills that are key to the particular business’ operations. Also provide a letter from the employer, plus any specialized degrees, licenses, or resumes, or other evidence to show the alien is qualified to perform the particular duties that are claimed.
It is highly recommended that you consult with a qualified business immigration attorney, who can help you structure your investment to ensure that all the legal elements of the investor visa are satisfied.