The E-2 Treaty Investor visa allows certain foreign nationals to travel to the United States to direct, develop and manage a business in which "the national has invested, or is in the process of investing" a substantial amount of money. The investor must be a national of a country with which the U.S. maintains a treaty of commerce and navigation. (France, Germany, the United Kingdom and Japan are a few of the many participating countries.)
There is a common misconception that you need to obtain the E-2 visa before investing in a U.S. business. Actually, if anything, the opposite is true. A review of the relevant U.S. Department of State Foreign Affairs Manual (FAM) section is helpful as the FAM is used by consular officers in deciding visa applications.
9 FAM 41.51 N8.1-3 funds must be irrevocably committed
FAM required that the investor meets these conditions:
- To be "in the process of investing" for E-2 purposes, the funds or assets to be invested must be committed to the investment and the commitment must be real and irrevocable. As an example, a purchase or sale of a business which qualifies for E-2 status in every respect may be conditioned upon the issuance of the visa. Despite the condition, this would constitute a solid commitment if the assets to be used for the purchase are held in escrow for release or transfer only on the condition being met. The point of the example is that to be in the process of investing the investor must have reached an irrevocable point to qualify.
- Moreover, for the alien to be “in the process of investing,” the alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. Mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not suffice.
As you can see the important factor is that you have placed your money at risk by committing it to the U.S. business. In my work with E-2 investors we review the financial arrangements that have been made in light of the requirements for the visa.