E-2 Investor Visas for U.K. Citizens

Introduction

Treaty Investor visas (E-2) are non-immigrant visas for nationals of a country with which the United States maintains a treaty of friendship, commerce and navigation who wish to go to the United States to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital.

By way of an example,  a British investor might purchase 75% of a restaurant located in Los Angeles. The restaurant operates at a profit and employs over 40 people, most of whom are American citizens. If all the other conditions for the visa are met, the investor could obtain an E-2 visa to enter the United States in order to operate his business and oversee his investment. He would also be able to send qualified employees who are UK citizens to work in his business if they meet certain specific requirements.

The US Embassy in London has seen a dramatic increase in the number of applications for E-2 visas in the last decade. One cause of this increase has been the strength of the pound against the dollar; another has been the growth in value of UK real estate. Combined, these factors have resulted in large number of British investors with substantial capital who seek to invest in the United States. The US government welcomes such investment. However, it is important for investors to understand the purpose of the E-2 visa so that they do not risk losing time and money in a lengthy visa process which may not result in an approval.

The E2 Treaty Investor visa was established to facilitate and enhance economic interaction between the United States and other countries. The U.S. Embassy in London cautions prospective applicants that the E2 visa was not intended to serve as a means for foreign nationals  to retire or merely reside in the United States. U.S. law explicitly states that E2 visa holders must be seeking admission to the U.S. "solely to develop and direct the operations of an enterprise" in which he or she has invested. Moreover, the E2 visa is a non-immigrant visas and thus temporary. The E2 can be renewed or extended only if the investment continues to meet all applicable requirements of U.S. immigration laws and regulations. Persons wishing to remain indefinitely in the United States should consider an immigrant visa.

The Treaty. The United States and the United Kingdom have maintained a treaty of commerce and navigation since 1815. In order to be covered by it, citizens of the United Kingdom must own at least 50% of the business and must actively develop and direct that business. In addition, in order to be eligible for E visas, U.K. applicants must reside in the British Isles. The relevant text, found in the U.S. Department of State, Foreign Affairs  Manual, states:

“The Convention, which entered into force on July 3, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands and Gibraltar) and to "inhabitants" of such territory. This term, as used in the Convention, means "one who resides actually and permanently in a given place, and has his domicile there." Also, in order to qualify for treaty trader or treaty investor status under this treaty, the alien must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty.”

Investors and Employees. Both owners and employees of treaty investor businesses receive the same kind of visa; the law makes no distinction between them. However, investors and employees go through different processes to get their visas. Investors must submit a binder of supporting documents and wait until this binder has been reviewed by officers at the London Embassy. Once the review is completed, the E-visas Unit will contact the investor to arrange an interview date. Employees of registered companies, on the other hand, may make their appointments through the Operator Assisted Information Service. They do not need to submit any documents in advance; however, at the interview they should present a copy of the business registration letter given to the company by the US Embassy.

Length of Visa. The maximum length for which an E2 visa can be issued to a citizen of the United Kingdom is five years. However, whether or not to issue for that length of time is solely the judgment of the consular officer deciding the case. In London, they typically issue the first E2 visa for two years. They do so because most of the businesses they see are relatively small and small businesses are volatile and often do not succeed. If they renew an E2 visa, they generally do so for the maximum five years although not always. In the case of large companies with high turnover and employing many Americans, they will sometimes issue the first visas for five years.

Change of Status. Investors who have changed status in the United States with USCIS must follow the steps for all first-time investors. Such a change of status remains valid only while the applicant remains in the United States. Once the applicant has left the United States, he or she requires an E-visa to return and resume the running of his or her business. Change of status does not guarantee the issuance of a visa nor does it exempt the investor from the normal process of filing documents in advance with the Embassy in London.

Dependents. The spouse and unmarried children (under 21 years of age) of treaty traders, treaty investors, or employees of qualifying enterprises may also receive 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. Spouses may work in the United States if they have obtained an Employee Authorization Card from the Department of Homeland Security. They may apply for this card after they enter the United States. Dependent children may not work in the United States although they may attend school.

Proper Use of B1/B2 Visas and Visa Waiver Travel for Investors. Potential investors may seek out investment opportunities, sign contracts, and take other steps to purchase or establish a business while traveling on B1/B2 status or on the Visa Waiver Program. However, applicants may not develop and direct a business while in such status. State Department regulations state (9 FAM 41.31 N9.7), "an alien seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor, is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status." Such actions are impermissible whether or not the investor receives any payment for his work.