The E-2 Visa was created to encourage foreign investments in the US by allowing businesspeople from treaty countries to develop businesses in the US through investment.
Prior to applying for an E-2 investor visa, the formal requirements should be complied with, such as registering the business, opening a corporate bank account, leasing an office space, wire transfer of funds to a US bank account, etc.
Before determining whether an E-2 investor visa can be granted by using real property, we must closely review the requirements of the law and the applicable regulations.
According to the Code of Federal Regulations at 8 C.F.R. 214 2(e)(2):
“An alien, if otherwise admissible, may be classified as a non- immigrant treaty investor (E-2) under the provision of section 101(a) (15) (E)(ii) of the Act if the alien:
(i) Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
(ii) Is seeking entry solely to develop and direct the enterprise; and
(iii) Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status.
The requirement for “a bona fide enterprise” is further clarified in Section 214 (e) (13) of the Code which gives us an indication as to required characteristics of an enterprise, by stating as follows:
“The enterprise must be real active and operating commercial or entrepreneurial undertaking which produces services or goods for profit”.
In interpreting the law, the following two main tests can be used as to determine whether the investment in real property will qualify the investor for an E-2 investment visa:
- The “active” requirement – the investment must be an active investment, namely, the investor must be actively involved in the business as to actively direct and develop the business on a regular basis.
- The “marginality” requirement – the investor must prove that his business will benefit the US economy. Hence, the nature of the business should be examined. The business cannot be a “marginal” enterprise, which is defined as a business that will only have the capacity to provide a minimal income for the investor and his family. Rather, the investor must demonstrate that the business will benefit more than just himself and his family and therefore contribute to the US economy.
In implementing the two tests stated above in order to determine whether real property in the US will provide an investor with an E-2 investment visa, the nature of the business must be examined. The issue is whether or not the business activity constitutes a “bona fide enterprise” taking into account all of the circumstances.
For example, a real estate investment whereby the investor simply holds title to a real estate property or simply buys properties for rent, his activities will usually not qualify for an E-2 visa, since it will not be regarded as an active business or a bona fide enterprise as required by the regulations. Rather, this would appear to be more of a passive investment which would likely not require the investor to “direct” or “develop” the commercial enterprise.
On the other hand, if the real estate enterprise requires ongoing activity by the investor on a full time basis, such as a business which involves purchasing and selling multiple real properties, renovating multiple real properties on a regular basis, or managing multiple rental properties, it may qualify as a bona fide enterprise.
A combination of seasonal rentals may be regarded as a bona fide enterprise since it requires ongoing activity during the entire year. As may a business of buying, renovating, and selling houses. By actively searching for the renovations throughout the year, buying the properties and selling them, the person is actively involved in the business and is actively engaged in directing and developing the commercial enterprise according to his discretion. He is also adding value to the US economy since he must hire people who will be involved in the process of renovating and selling the properties, hence, his activities are more likely to qualify for an E-2 visa.
To summarize, a passive real estate investment such as merely owning a rental property, is not likely to qualify for an E-2 investors visa. However, if an investor owns multiple units of property which are being maintained on a regular basis, renovated and rented from time to time, then this investment is more likely to fulfill the E-2 requirements.
Of course, each applicant must be judged and viewed by the totality of the circumstances test, and should consult with an immigration attorney to more accurately assess their chances of success in the E-2 visa process.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.