E-2 Treaty investor visa allows for stay in US along with family

DEARAttorney Tan,

I would like to know if there is any way for my family and I to stay in the US if I invest in a US business.  While I do have some money to invest, I do not have the $500k-$1m that I read was necessary to get a green card through investment.  Do I have any other options?  – S.K.

Dear S.K.,

You should consider the E-2 Treaty Investor visa, which is a non-immigrant visa that allows a person to be admitted to the US with investment of a “substantial” amount of capital in either a new or existing US business. 

A main objective of the E-2 Treaty Investor classification is to promote and encourage investment in the US.  Accordingly, the Treaty Investor must demonstrate that he/she is actually investing a substantial amount of capital in the US enterprise.  The Treaty Investor must show that he/she is placing capital at risk with the objective of generating a profit; the capital must be subject to loss if the investment fails.  There is no specific amount of money that is required to be invested to be considered “substantial.”  Whether an investment is considered “substantial” is determined on a case-by-case basis.

The benefits of an E-2 Treaty Investor visa include an indefinite period of stay in the US with extensions of the E-2 visa.  An E-2 Treaty Investor is allowed a maximum initial stay of 2 years, and requests for extension can be obtained in increments of 2 years.  There is no limitation to the number of extensions an E-2 Treaty Investor may request.  The E-2 Treaty Investor visa is a non-immigrant visa, and accordingly, the Treaty Investor must maintain an intent to depart the US whenever the E-2 status expires.

Another important benefit for an E-2 Treaty Investor is the ability to be accompanied to the US by his/her spouse and unmarried children who are under 21 years of age.  An E-2 Treaty Investor’s spouse may apply for work authorization in the US, and no restriction is placed as to where the E-2 spouse can work.   The spouse can work for another employer.  Further, children who are under 21 years of age may enroll in US schools.  The immediate family come to the US under the E-2 classification as dependents of the Treaty Investor.  The family members will have the same duration of stay as the Treaty Investor.   

In addition, an employee of a Treaty Investor may come to the US under the E-2 classification providing that he/she is the same nationality of the Treaty Investor, and either has duties of an executive or supervisory character or has other special qualifications.

What are the general requirements to obtain an E-2 Treaty Investor Visa?  To obtain E-2 Treaty Investor status, a person: 1) must be a national of a country with which the US maintains a treaty of commerce or navigation, 2) either has invested or is in the process of investing a substantial amount of capital in a US enterprise, and 3) seeks to come to the US to develop and direct the enterprise in which he/she is investing or is going to invest.

Consideration of the E-2 Treaty Investor visa is made on a case-by-case basis.    The assistance of an experienced attorney who can assess the proposed type of business in which investment is contemplated as well as the amount of investment is therefore recommended. 

* * *

Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philippine American Bar Association.

* * *

LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010.  Tel:  (323) 639-0277.  Email: [email protected].