Treaty Investor (E2) Visa

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Overview

To qualify for Treaty Investor (E-2) visas applicants must be coming to the United States either to develop or direct the operation of an enterprise in which the applicant has invested a substantial amount of capital. Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. Ukraine is one of these countries. For a list of all treaty countries, click here.

The spouse and unmarried children (under 21 years of age) of treaty investors, or employees of enterprises may receive dependent E visas in order to accompany or follow to join their spouse or parent. They are not required to have the same nationality as the principal applicant to obtain an E visa.

E visas permit the investor and his or her family to live in the United States during the period of stay authorized by the Department of Homeland Security (DHS). E visas are nonimmigrant visas; consequently, visa holders are allowed to live in the United States only so long as the conditions under which the visa was granted remain valid. Dependents are not authorized to work in the U.S. unless they receive explicit authorization to do so from DHS-USCIS in the United States. Dependents of trader investors may apply for work authorization must be applied for after their arrival in the United States.

Qualifications for a Treaty Investor (E-2) Visa

  • The investor, either a person, partnership or a corporate entity, must have the citizenship of the treaty country. If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality;
  • The investment must be substantial and the funds have to be "irrevocably" committed. The investment must be sufficient to ensure the successful operation of the enterprise;
  • The investment must be in a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or mere ownership of undeveloped land are not considered an investment;
  • The investment may not be marginal. Based on 9 FAM 41.51, the enterprise must either show a financial return that significantly exceeds what is necessary to support a living for the investor or else the enterprise must have the capacity, present or future, to make a significant economic contribution;
  • The investor must have control of the funds, and the investment must be at risk in a commercial sense.  If the funds are not subject to partial or total loss if business fortunes reverse, then the investment is not an investment in the sense intended by the Immigration and Nationality Act (INA) 101(a)(15)(E) and in 9 Foreign Affairs Manual (FAM) 41.51. Loans secured with the assets of the investment enterprise do not qualify;
  • The investor must be coming to the United States to develop and direct the enterprise.  If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled or unskilled workers do not qualify. Please note that a detailed explanation of why the applicant's skills are essential for the enterprise in the U.S. or why the applicant possesses qualifying “executive or supervisory: experience may be required.
  • The applicant must intend to depart the U.S. when his/her E-2 status ends.

E Visa - Overview of the Process

There are three stages involved in the processing of E-visas in Kyiv: submission of documents, review of those documents, and adjudication.

Submission

All applicants must submit specific documents for an E-2 visa.  Please submit all necessary documents to KyivAppoint@state.gov. You may submit your E visa package only once you have completed the visa application form DS-160 and paid the application fee for ALL applicants.

Please use the e-mail subject line: “Surname, Given Name, Business Name, E Visa Application”. Use this email address for specific E visa questions as well as regarding E visa cases already submitted.

You must submit the documentation listed below.  The document package should not exceed 7MB (about 100 pages, pdf only). You may use multiple attachments. Do NOT send “linked” files, as we cannot access or open these.  All documents should be high quality scans.  The sections below MUST be clearly marked either using document navigation, or consistent naming conventions.

Incomplete submissions will not be accepted and will significantly increase processing time of the visa.

Upon receipt, the application is reviewed for completeness by a member of the E Visa Unit. If the application is missing the DS-160 Confirmation Sheet, 156E, fees or photograph, the case will be returned to the applicant or legal representative for correction.

Once we have deemed that the documents are complete, the case is placed in a queue based on the date of receipt. This date of receipt is the date the case was found to be documentarily complete. Notification will be sent to the applicant and/or legal representative confirming receipt of the case. After this point, we will not accept any other supporting documents until the interview itself.

Requests by applicants to have their case moved up in the queue will not be accepted. Current review time for each case is up to 90 days. Please plan in advance when considering an application for an E visa.

Review

The case is reviewed by a Consular Officer when its place in the queue has been reached. Consular officers meticulously examine all documents submitted by the applicant. Please make sure that these are germane to the case. The reviewing officer will note any missing or additional documents that may be required at the interview.

The applicant or legal representative is notified that the case has been reviewed; provided a list of any additional documents required; and advised of open dates for the applicant's interview. Applicants must/must attend an interview within three months (90 days) of this initial notification. Cases will not be held longer than 90 days.

Adjudication

When your case has been fully reviewed, you will receive a call from an embassy employee in order to schedule an interview.

On the day of the interview, applicants should come to the Embassy no more than 15 minutes prior to the appointment time so that they can proceed through security. Finger scans will be taken at this time and additional documents handed in.

Applicants should be prepared to discuss their business in detail during their interview. Legal representative and/or financial advisors are not permitted to attend. At the conclusion of the interview, the Consular Officer will determine if the business and applicant qualify under U.S. regulations for the visa.

If the applicant is denied an E visa, the officer will provide a form describing the reasons for the refusal and citing the appropriate section of US regulation. The officer's decision is final. If the applicant feels strongly that the case was misjudged or if the material facts of it change, he or she may submit a new application for the same business. This will be treated as a new submission and take its place at the end of the queue. We will make every effort to see that the next interview, if one is merited, is conducted by a different officer.

Required documents

Tab A (Table of Contents) Cover letter describing company, position and beneficiary. This letter must address all requirements for E visa eligibility as defined by the Foreign Affairs Manual and US law. It should address the following in detail:
  • that the investor has invested or is actively in the process of investing, as per 9 FAM 41.51 N8 (to be documented in Tab E); and
  • that the enterprise is currently running or will open its doors imminently, 9 FAM 41.51 N9 (to be documented in Tab F); and
  • that the investment is substantial, 9 FAM 41.51 N10 (to be documented in Tab G)
  • that the investment is more than a marginal one solely for earning a living, 9 FAM 41.51 N11 (to be documented in Tab H); and
  • that the applicant will fill an executive/supervisory role or possesses skills essential to the firm’s operations, 9 FAM 41.51 N14or that the applicant is entering the U.S. solely to develop and direct the enterprise, 9 FAM 41.51 N12 (to be documented in Tab I).
If the company has previously qualified for E visa status, please include the date and location of the initial qualification. Also, please include a paragraph concerning the applicant’s unequivocal intent to depart United States when E status ends.
Tab B (Forms)
  • Confirmation sheet of the DS-160 (applicants are required to complete the online electronic visa application form DS-160 and submit the confirmation sheet with their application) Contact information provided on the DS-160 must include an e-mail address.  
  • Completed form DS-156E .
Tab C (Applicant Information)
  • A color photocopy of the bio data page of the principal applicant's passport and similar copies of any US visas, US entry/exit stamps, and I-94's.  Please bring your original passport and any prior ones containing U.S. visas with you at the time of the interview.
  • A copy of any changes or extensions of status granted by USCIS (Form I-797).
  • A resume or curriculum vitae of the principal applicant.
  • Signed statement of intent to depart the US upon termination of status.
  • Proof of relationship any dependents to the principal applicant:
    • Marriage certificate;
    • Birth certificate for child
Tab D (Ownership)

Proof of treaty country ownership (at least 50%) and controlling interest in the enterprise.

  • Articles of Incorporation (for corporations) or Organization (for LLC's) for US business.
  • Share certificates and/or operating agreement (as applicable) to verify ownership.
  • If you have a large company with several owners or subsidiaries or if the chain of ownership includes intermediary entities, please also submit the following:
    • An organogram of the full ownership structure;
    • Legal evidence of instances of ownership within that chain;
    • Color photocopies of the bio data pages of the passports of the owners of the ultimate parent company.
    • If the investor is a public company with many shareholders, none of whom owns more than 50%, please also include:
      • A copy of the most recent Annual Report;
      • The Companies House Report;
      • An affidavit signed by the appropriate corporate official asserting that the company is traded exclusively on the public Stock Exchange;
      • A copy of the most recent trading information on the stock
Tab E (Investment)
  • A complete money trail of the funds invested, including:
    • Documentation of the original source of the funds (sale of property, inheritance, loans, earnings, sale of business, etc.)
    • Movement of these funds to a U.S. account;
    • Use of these funds for qualifying business expenses. Please include invoices, cancelled checks, and bank statements showing matching debits (highlighted).
    • If you are buying an existing business, please provide all of the following that apply in your case:
      • A signed, dated, valid purchase agreement
      • A binding escrow agreement (see 9 FAM 41.51 N8.103 for guidelines) that explicitly says where the money goes if the visa is issued, what happens when it does not, and is signed and dated by all parties. Please cross-reference exactly any relevant purchase agreement.
      • Signed, dated, valid lease for business premises, including evidence of payments.
      • Evidence of any other funds spent to acquire and set up the business
      • If you are establishing a start-up, please provide all of the following that apply:
        • Signed, dated, valid lease for business premises, including evidence of payments;
        • Evidence of equipment and/or inventory purchases.
        • If you are purchasing a franchise, please provide:
          • a signed and dated franchise agreement;
          • Evidence of payment of the franchise fee.
          • Investment spreadsheet. Evidence of investment is required, e.g., copies of debits from bank accounts, checks, invoices.
It is important to provide proof of actual investments related to the enterprise, not just wire transfers to a US account.
Tab F (Real and Operating)

Proof that the enterprise is currently running or will open its doors imminently as defined by 9 FAM 41.51 N9.  Documents may include:

  • Business licenses
  • Special permits (food, alcohol, etc.)
  • Photos of premises
  • Utility bills (electrical, water, etc.)
  • Bank statements
  • Sales contracts / invoices
  • Sales figures, business transaction records
  • S. income tax returns
  • Copies of audited financial report and balance sheet
  • Pay stubs
Tab G (Proportionality) Evidence that investment is substantial as defined by 9 FAM 41.51 N10.
Tab H (Marginality)
  • US tax returns for business for the past three years. Taxes must include all statements and schedules. These must be copies of the signed and dated forms actually submitted to the IRS.
  • All W-2 and/or 1099s for the last two tax years.
  • Profit and loss statements for the current and previous calendar years.
  • Start-up Business should also provide:
    • A business plan that analyzes the local market and competition and gives a 5-year projection of profit and loss. Projections must be backed up by external sources.
    • A breakdown of start-up costs necessary for the business to become operational.
Tab I (Controlling Interest)

Organization Chart

  • Showing position in company
  • Showing direct subordinates of PA
  • Identifying any person being replaced

If the applicant is entering the United States as the principal investor, proof that he or she will and is qualified to solely develop and direct the enterprise (9 FAM 41.51 N12)

If the applicant is applying as an employee with Executive and Supervisory Responsibility, evidence that he or she meets the criteria outlined in 9 FAM 41.51 N14.2.

If the applicant is applying an essential employee, evidence that employee has essential skills that the enterprise urgently needs, as well as the projected duration of this essentiality. You should include relevant diplomas, job training certificates or letters from previous employers in this section. You may also wish to explain why the enterprise was unable to find a qualified US citizen or Legal Permanent Resident to fill the position. You should address the criteria contained in 9 FAM 14.51 N14.3.