On May 1, 2023, the Department of State updated provisions of the FAM relating to E visas, particularly those related to E-2 substantiality; E company registration; and treatment of spouses and children of E visa applicants.

What is the E-2 Investor Visa?

E-2 Treaty Investor visas are for citizens of certain countries wherein the applicant is coming to the United States to develop & direct the operations of a business in which the applicant has invested a substantial amount of capital.

What are the new regulation updates concerning the E-2 investor visa?

• SUBSTANTIALITY: The E-2 regulations require that the investment amount be substantial in proportion to the cost of establishing the business. The new policy suggests that once a determination is made that the sums invested are substantial, the applicant does not need to be evaluated on that criteria going forward (the exception being in cases of a change of ownership usually through a business acquisition).

• COMPANY REGISTRATION: The change recommends a criteria to apply in assessing whether an E company registration is in good standing, including consideration of the number of E employees and review of E company eligibility every five years.

• SPOUSES AND CHILDREN OF E-2 VISA APPLICANTS: Perhaps the most drastic change in policy relates to the derivatives of E-2 visa applicants. Prior to the May 2023 update, the spouse and children of an E-2 visa applicant receive the same visa validity, number of entries and are required to pay the same visa issuance (reciprocity) fee as the principal applicant. The new policy distinguishes between the treatment of derivatives from E Treaty countries and those from non-Treaty countries, and the reciprocity standards applicable to the nationality of the specific visa applicant (i.e., the derivative) rather than the principal, except in instances in which the derivative's nationality does not have an E Treaty.

I have a different nationality than my spouse? Does that mean we will get different visa durations?

Yes, this could potentially be the case, while we don’t know yet exactly how this new policy will be applied at the consular posts, a few scenarios may come to be. The spouse and children who are nationals of countries with an E treaty agreement are issued visas valid for the maximum validity authorized by the reciprocity schedule of their nationality OR for the length of the principal’s visa, whichever is shorter. For example, if the Dutch E-2 investor would get 36 months, their Canadian spouse and/or children would receive the same, not the 60 months available to Canadian nationals. The family would also be potentially subject to the reciprocity fee applicable to Dutch applicants.

Another potential scenario resulting from this new policy can be a Canadian investor may be granted a 60-month visa and will pay no reciprocity fee, however, their Dutch spouse may be granted a 36-month visa and will have to pay $2,118 for the visa to be issued. On the other hand, A UK principal with a Brazilian spouse will both get 60 months since the spouse is not a national of a treaty country.

This is a fairly new development, so we don’t know yet how this will be applied in practice. We will continue to update you as we see how this new policy is implemented. If you are interested in starting a business in the United States on the E-2 investor visa, please contact us so we can help you determine if the E-2 visa is right for you.  Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news.

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