EB-2 Treaty Investor Requirement
Requirement 1 - As a treaty investor, you must be coming to the United States to invest in a new or existing enterprise.
USCIS defines an E-2 investment as the investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. Your investment may be for the purpose of establishing a new business venture, or purchasing a pre-existing business. In either scenario, you must demonstrate that the capital you are investing is substantial.
Requirement 2 - Your investment must be in a bona fide enterprise and may not be marginal.
A bona fide enterprise is one that is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit. The enterprise cannot be an idle investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise.
A marginal enterprise is one that will not generate more than enough income to provide a minimal living for you and your family or to make a significant economic contribution.
How do I demonstrate that my business is bona fide?
Some of the evidence you may submit to demonstrate that your business is bona fide includes:
- Notice of assigment of an Employer Identification Number from the Internal Revenue Service (IRS)
- Tax returns
- Financial statements
- Quarterly wage reports or payroll summaries (i.e., W-2s and W-3)
- Business organizational chart
- Business licenses
- Bank statements, utility bills, and advertisements/telephone directory listings
- Contracts or customer/vendor agreements
- Escrow documents
- Lease agreement
How do I demonstrate that my business is not marginal?
Some of the evidence you may submit to demonstrate that your business is not marginal includes:
Detailed business plan or executive summary showing that your business will produce more than a minimal living for you and your family or will create a significant economic contribution, along with any evidence that you believe will support the statements in your business plan.
U.S. or foreign individual tax returns
Financial statements
Payroll summaries (i.e., W-2s and W-3)
Requirement 3 - You must be in possession of the funds you will invest and the funds must be committed to your business.
You must demonstrate that the capital you invest is irrevocably committed to the enterprise and subject to partial or total loss in the event that the entity fails. The funds you invest must also be your own. Additionally, the invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise you are considering.
How do I demonstrate that my investment is substantial and irrevocably committed?
Some of the evidence you may submit to demonstrate that your investment is substantial and irrevocably committed to the enterprise includes:
- Canceled money orders and/or checks
- Corresponding personal and/or business bank statements
- Itemized list of goods and materials purchased for the start-up
- Corresponding financial accounting documentation
- Lease agreement
- Term Sheet, Letter of Intent, or Memorandum of Understanding
- Bill of sale
- Escrow documents
- Loan and/or mortgage agreements
- Capitalization table
- Valuation analysis of business assets
- Purchase agreement for business assets
- Valuation analysis of stock
- Stock purchase agreement, accompanied by:
- Meeting minutes
- Stock ledger
- Stock certificate
- Corresponding forms of payment for stock
Requirement 4 - You must be able to provide the source of your funding.
You must show a clear and legitimate path regarding the source of the capital you will be investing. You must also demonstrate that the funds you are investing have not been obtained through criminal means.
How do I demonstrate the source of my capital?
Some of the evidence you may submit to demonstrate the source of your capital includes:
- Wire transfers, money orders, and/or canceled checks
- Foreign and domestic bank statements
- Foreign tax returns
- Pay records
- Property records
- Loan and/or mortgage agreements
Requirement 5 - You must be coming to the United States to develop and direct the enterprise.
You must show that you will develop and direct the investment enterprise by demonstrating ownership of at least 50 percent of the enterprise, or by possessing operational control through a managerial position or other corporate devices.
How do I demonstrate that I have the capacity to develop and direct my business?
Some of the evidence you may submit to demonstrate your capacity to develop and direct your business venture includes:
- A detailed list of all owners and their percentage of ownership. If you are one of two 50 percent owners, or own less than 50 percent of the enterprise, the documentation should be signed by all owners in order to evidence that you possess a controlling interest
- Capitalization table
- Stock purchase agreement, term sheet, letter of intent, or memorandum of understanding
- By-laws
- Meeting minutes
- Stock certificates or stock ledger
- Articles of incorporation/organization
- Annual report or U.S. Securities and Exchange Commission (SEC) Form 10-K
- Partnership agreement
- Franchise agreement