ARTICLE: 04 October 2017

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What Qualifies as a “Substantial Investment” for the E-2 Treaty Investor Visa?
Written by Nita.icole Upadhye


"The best time to plant a tree was 20 years ago. The second best time is now."- Chinese proverb

I. Introduction

According to the US Small Business Administration (www.sba.gov) small businesses are a major contributor to the United States economy. The non-immigrant E-2 Treaty Investor visa to the United States is available for foreign nationals who are “investing a substantial amount of capital in a US business,” and is a great option for qualified entrepreneurs across all business sectors seeking to establish a presence in the United States. There are many aspects to submitting a winning E-2 application, but this piece will focus on one central requirement- making a “substantial investment.”
The E-2 visa is applied for in the US Embassy in your home country (with some exceptions), and while there is statutory and regulatory guidance, much is left up to the discretion of the immigration officer and his or her interpretation of the rules as it applies to your situation. Still, there are a few guidelines on whether your investment/business will meet the standards.
The question that comes up for those seeking this visa is what qualifies as a ‘substantial investment’ and how to meet the criteria with certain types of expenditures. The intention behind this requirement is that the business is not speculative and has a high chance of success.
Under the relevant guidelines (See 9 FAM 402.9-6(D)) an investment of a substantial amount of capital for E-2 visa purposes constitutes an amount that is:

~Substantial in a proportional sense;

~Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

~Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

II. Is there enough of a financial commitment to get the business up & running?

Types of Expenditures that Can be Used to Qualify - Investors must demonstrate a strong financial commitment and provide a clear indication that the expenses incurred will bring the business to the point of being operational. There are two basic categories of expenditure that can be used to show strong financial commitment, depending upon whether you are starting a new business or purchasing an existing company.

A. Costs related to the start-up of a new business

There are many different expenses that you can use as part of the initial investment, and they don’t all have to be paid in the United States, as long as all payments are made using the investor’s own funds. Here are a few examples of allowable expenses:
• Pre-paid leases, equipment purchases, inventory;
• Office expenses, furniture, computers, software;
• Legal fees, professional fees, business set up and registration costs, licenses;
• Advertising, marketing, trade show expenses;
• Rights to intangible property (such as the value of an invention or industrial design or a software product).

A small amount of funds in a US bank account can also be added to the list of qualifying expenses, as long as other expenses have been committed. This cash is meant to be used as working capital to cover salaries and everyday operating expenses for the business.
Some investors ask whether funds in an account in anticipation of visa approval is enough to satisfy the requirements. In the start-up E-2 context, funds in a bank account alone would not satisfy the substantial investment test and the investors must incur all other necessary expenditures to satisfy the test.
All expenses must be meticulously documented through invoices, receipts, and bank records.

B. Purchase price of existing business

If you are buying a business in the United States, the purchase price alone will form a significant part of your investment. Other expenses incurred should also be included (such as professional fees and fees for office premises) but the focus will be on the purchase price. The funds for the purchase of the business must be placed in an escrow account in the United States, to be released upon the successful approval of the investor visa by the US Embassy. We advise our small business investor clients to find a business in the purchase price range of $100,000 - £150,000 (at a minimum). Anything less may not show a strong enough commitment.

III. Is the investment substantial in a proportional sense?

Proportionality Test -
According to the FAM, “the amount invested in the enterprise must be compared to the cost (value) of the business by assessing the percentage of the investment in relation to the cost of the business…. The proportionality test can best be understood as a sort of inverted sliding scale. The lower the cost of the business the higher a percentage of investment is required.” 9 FAM 402.9-6(D)f.

For example, a consulting firm with few employees and an investment of $200,000 might need to spend 100% of the investment, while a $50 million manufacturing business could qualify with a fairly low percentage spent up front.

The investor should be mindful of the fact that a lower investment in a larger business may not be sufficient to satisfy the nationality test under 9 FAM 402.9-4(B). That discussion is outside the scope of this piece.

IV. Size of Investment vs. Other Factors

Although there is no specific cash threshold amount to qualify for the E-2, our view is that $100,000 should be the target figure for a start-up business. That is to say, the list of all expenditures related to the set-up of a new US company, when added up, should be in the ballpark of $100k. That said, if the investors have secured high value contracts in the United States, this could off-set a lower upfront cash investment. For example, if a financial services company was seeking to establish a US office, the investors may only need $50k to get the business up and running. This is far less than our 100k target, however, if the investors can demonstrate that the purpose behind setting up in the US is to service a large contract valued at hundreds of thousands of dollars, then the need for a large amount of capital may not be as essential.

If the investor seeks a loan through a third party, we suggest that at least 75% of the investment should include the investor’s personal assets. This means that there is some direct risk to the investor, rather than relying heavily on unsecured credit guarantees, loans or mortgages. If the investor is taking funding in exchange for shares to the outside investor, then the analysis would change entirely depending upon the nationality of the outside investor and that party’s involvement in the business. That particular discussion is outside the scope of this piece.

V. Conclusion

There has been and continues to be great interest among foreign investors to pursue business opportunities in the United States. Despite the recent policy changes by the new administration which has resulted in heightened scrutiny on visa applications, the E-2 visa remains a viable option for serious investors who seek to develop and direct a US business.

If you have questions about the E-2 investor visa and whether you (or your client) are eligible, please contact NNU Immigration Limited at info@nnuimmigration.com. We are a highly-skilled E-2 team and have successfully submitted E-2 applications at US Embassies in London, Rome, Paris, Helsinki, Toronto and Sydney as well as individual employee applications around the world.

This posting does not constitute direct legal advice and is for informational purposes only.