Are You Investing Enough for Your Visa?


Everyone already knows that the E-2 visa is a solid choice for foreign nationals interested in investing in a U.S. enterprise, but do you know how much to invest? One of the major pitfalls of applying for an E-2 is a misunderstanding of the investment requirements, which can be tricky since the USCIS is relatively vague on the subject.

What Are the Investment Regulations?

According to the USCIS, the treaty investor must invest a substantial amount in a bona fide U.S. enterprise. Unfortunately, aside from a few clarifications, there aren’t any specific numbers given to help investors and their attorneys determine how much should be invested. Knowing this, it is important to tread carefully in order to avoid a petition denial. Here are the stipulations given by the USCIS:

  • The investment amount needs to be considered substantial compared to how much the enterprise is worth or how much it would cost to establish a new enterprise.
  • The investment must be enough to make the E-2 investor’s commitment to the enterprise clear.
  • The investment amount must be enough to demonstrate that the enterprise has the potential to be successfully developed and operated.

There you have it, a vague and hazy outline of the most important aspect of the E-2 visa. Further on in this post, we’ll discuss a good tactic for ensuring that the investment amount is enough.

The other stipulation placed on the investment is that the funds must be irrevocably committed to the enterprise. This means that the treaty investor needs to demonstrate that, should the enterprise fail, the investor would suffer substantial loss, thereby ensuring his or her commitment. This can be shown through a lease, deed, or purchased equipment.

What is a Bona Fide Enterprise?

The USCIS defines a bona fide enterprise as one that is legitimate, actively doing business, and exchanging goods or services for profit. The enterprise should also be legally licensed to do business in the state or county that it’s in.

E-2 applicants also want to avoid investing in a marginal enterprise. These are defined as businesses that don’t seem to have the potential to produce enough income to sustain the investor and his or her family in the U.S. This doesn’t mean that it currently needs to generate this income, only that it demonstrates the eventual capacity for it. In general, the USCIS will look at your projections for the next five years to determine whether or not the enterprise is marginal.

How Much is a Substantial Amount?

Because the USCIS is not specific when it covers the investment amount, there is no official minimum or maximum amount that must be invested. However, to adhere to the definition of “substantial amount”, here are a few basic tips for making sure that the investment passes the test.

The USCIS looks at the investment amount in relation to the cost of purchasing or starting the enterprise. This means that, the larger and more expensive the enterprise, the smaller percentage the investment must be. Here is an example:

Rodney and Trisha are both individually pursuing the E-2 visa. Rodney’s plan is to purchase a small hole-in-the-wall bakery that is worth $150,000 and develop it into a chain. Trisha, on the other hand, is interested in investing in a low-level restaurant franchise worth $1 million. To comply with the “substantial amount” requirement, Rodney would likely have to invest between 90-100% of the value of the enterprise while Trisha would only need to invest about 50% of the value of the franchise.

If an investor is starting a new business, the USCIS rarely takes into account the costs of getting a business off the ground. Often, an E-2 applicant would need to get the business started before filing the petition and committing the investment. However, sunk costs such as the physical premises, labor, and equipment can all be attributed toward demonstrating that your enterprise is bona fide.

The general rule of thumb is to have your investment be no less than $100,000. While exceptions can always be made, the USCIS scrutinizes cases with a smaller investment amount more heavily than others, increasing the chances of denial. Overall, it is important to show that the investor is completely committed to the enterprise and that the generated income will not only support the investor and his or her family, but also result in the creation of jobs for U.S. workers.

This last part is important, though not explicitly required. In my experience, developing a business plan that involves hiring U.S. workers is a great way to get your petition noticed in a positive light. This also works for visas like the L-1A and green cards like the EB-5 and EB-2 NIW. Ultimately, the USCIS wants to see that your impact on the U.S. economy will result in the creation of American jobs.

E-2 visa attorney and applicants alike should be well aware of the rules surrounding the investment amount. This could help avoid unnecessary delays, issues, or even denials.

About The Author

Shilpa Malik, Esq. Shilpa Malik, Esq. worked as a Senior Attorney at prominent New York City based law firms where she practiced Immigration Law exclusively prior to founding her own law firm. She has handled a myriad of Immigration cases and issues including Family-Based cases, Employment Based cases, Consular Processing, CSPA, Removal Representation and Defense. Attorney Malik has participated in several community outreach programs and was an Advocate with the Immigrants Rights Clinic at the New York University School of Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.