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e1 or e2 visa

It may seem obvious to you which entrepreneur visa type is the right one for you when choosing between the E1 vs E2 visa, because each category seems to have a clear-cut set of must haves.  However, there might be more nuanced reasons why you would choose one over the other that typically won’t be part of the generic E1 vs E2 requirements lists.  The purpose of this blog post is thus to give you a sense of a few of the myriad additional considerations that may exist in order to help you think about this proves in a fuller manner.

E1 vs E2 Visa: Things to Consider

To start, the E1 visa category does not require a cash investment in a U.S. business nor does it involve an analysis of whether or not the business may be “marginal,” meaning too small to do much more than support merely the investor and her family.  This is because the only thing that someone who is applying for an E1 visa must show, aside from being a national of a treaty country, in order to be eligible to receive approval, is that his business’ activities involve substantial trade principally with the U.S.

Because the U.S. Foreign Affairs Manual (at 9 FAM 41.51 N7.1) makes clear that when a U.S. branch office of an international company serves a function in its broader business plan, that office can rely upon the activities principally of the foreign office which means it would need to show little to no actual expenditure on the U.S. office.  Also, because an E1 applicant can be an individual in lieu of a company, professional consultants with U.S. clients likely will be able to meet the requirements of E1 visa eligibility.

One consideration regarding whether to choose an E1 or E2 visa is that for E2 visas there is an increasingly strict requirement on the part of U.S. immigration authorities to prove the source of the funds for the E2 investment, specifically to authenticate that those monies are derived from a lawful source.  Thus, for applicants who may face difficulties locating documentation needed to meet this burden of proof (notwithstanding the obvious disclaimer that illegal funds should not be used for any immigration purpose) that are otherwise eligible for an E1 visa, that option may be preferable.  (For more information on these proving legal funds requirements, see the EB-5 regulations at 8 CFR §214.2).

Another situation a potential applicant may face is where cash is tight and business funding is prospective; an investor typically will want to choose the E2 visa in this case and show strong proof that money will increasingly arrive over the course of the next months or years by submitting a strong business plan.  If you can illustrate to immigration that your novel, superlative business concept has a great chance of succeeding, with a sophisticated business plan, perhaps backed up by business experts or professors, you can still obtain approval without a great deal of cash on hand.

Another consideration involves the local rules and practices of your country’s specific consulate or embassy to which you will be applying.  Often the local rules’ implications will override any general considerations, so you will want your immigration attorney to do a search of the immigration bar association database and discuss this issue with colleagues to determine whether those issues may exist.

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