E2 - how to?

Old May 3rd 2002, 4:30 pm
Posts: n/a
Default E2 - how to?

What forms do I need to apply for E2 visa from Canada? How long does it take? What
documents do I need? Do I need a lawyer?

Thx so much for your help.
Old May 4th 2002, 9:00 am
Andrew M. Wilso
Posts: n/a
Default Re: E2 - how to?

I believe your chances of success are greatly increased when you use an immigration
attorney to file your E-2 application with the U.S. Consulate in Toronto. I am an
immigration attorney, so it may seem self-serving, but I do not think an E-2 is an
application that should be filed without representation. There are petitions and
applications that do not require professional representation, But I do not think an
E-2 is one of them.

There are many issues and fianncial/immigration obstacles to overcome when applying
for an E-2. Theer are also adavntages associated with underdstanding excatly what the
E officer in Toronto is looking for in an E-2 application.

Below, please find an ouytline of the important issues to hit when applying
for an E-2.

Definition of an E-2 Treaty Investor:

An individual coming to the U.S. pursuant to a treaty of commerce and navigation
between the United States and a foreign country of which he/she is a national solely
to develop and direct the operations of an enterprise in which he has invested, or of
an enterprise in which he is actively in the process of investing, a substantial
amount of capital. Many of the requirements for an E-2 are the same as the E-1,
except that E-2's deal with investing rather than trade. As can be gleaned from the
definition, the critical aspect of any E-2 is the amount and type of investment in
the business.


a. Treaty Must Exist Between the U.S. and Canada

The E-2 nonimmigrant category is available only if a treaty of commerce and
navigation or a bilateral investment treaty providing for nonimmigrant entries is in
existence between the U.S. and the foreign country. Canadians whose companies engage
in trade with the United States are eligible for E-2 status pursuant to NAFTA.

b. Nationality

The E-2 treaty investor, whether an individual, business, or employee of the
business, must possess the same nationality of the treaty country. The nationality of
a business is determined by the nationality of the individual owners. In order to
meet this requirement, there is what is known as the 50% rule. Under the 50% rule, at
least 50% of the business must be owned by nationals of the treaty country.
Therefore, in the case of a Canadian national, at least 50% of the business must be
owned by Canadians. In many scenarios, nationality is determined by the owners of the
business. In larger companies where there are many shareholders and owners, the
company may base their nationality where their stock is principally traded
(i.e.Toronto Stock Exchange). Importantly, under this rule, the country of
incorporation is irrelevant to its nationality with respect to E-2 requirements.

c. Invested or Committed to Invest

The Canadian individual or entity must have invested or be actively in the process of
investing a substantial amount of capital in a bona fide enterprise in the United
States, as distinct from a relatively small amount of capital in a marginal
enterprise solely for the purpose of earning a living. Importantly, simply investing
a small amount of capital into a business in the U.S. to maintain a living is not
enough to qualify for an E-2. Also of importance, the invested capital must be at
risk to the investor. This means that the investment must be subject to loss if the
business does not succeed.

i) Substantial Investment

One of the most common questions in evaluating an E-2 case is, "How much money do I
need to invest?" Unfortunately, like many questions in immigration law, there is no
easy or correct answer. This ambiguity is seen in the Foreign Affairs Manual
explanation of substantial investment—"No set dollar figure constitutes a minimum
amount of investment to be considered "substantial" for E-2 visa purposes. This
requirement is met by satisfying the "proportionality test.""

The proportionality test is a measure of the amount of funds invested and the cost of
an established business, or the cost of establishing a business. The proportion is
calculated by comparing the amount of capital invested versus the amount it takes to
either buy an existing business or establish a new business. For example, if the
amount invested is 80% of the cost of $100,000 business, that is a fair percentage of
the required funds, and a percentage that should be recognized as substantial.

While some provide a range of proportion percentages and value amounts of the
investment, I hesitate to do so because there really are no set rules. It is always a
case by case basis, because a $50,000 may be substantial for one type business (i.e.
service industry), but not for another (i.e. manufacturing industry). However, as a
measuring stick, 70% is a level to shoot for when showing substantiality.

ii) Investment Cannot be Marginal

The investment cannot be a small amount solely for the purpose of earning a living
for the investor and his family. Marginality is a separate issue from substantiality,
and deals more with the ability of the business to generate a positive income within
3-5 years as an operating entity.

iii) Source of Investment

The funds invested must be those of the individual and must be at risk and subject to
complete loss if the business does not pan out. For example, funds obtained by a loan
secured against the business itself do not qualify because there is no element of
risk. However, funds obtained by a loan secured against the personal assets of the
investor qualify because there is risk involved. In addition, the investor must be
making the investment with capital she controls.

iv) Business Must be Active

The U.S. company must be engaged in active and ongoing commercial activities, as
opposed to simply passive dealings. For example, real estate holdings are often
suspect and seen as passive unless the land is being developed or improved.

v) E-2 applicant must be critical employee

The individual must be engaged in an executive or supervisory capacity, or have
special qualifications essential to the enterprise. The E-2 applicant need not be the
actual investor, but must be an executive, manager or an essential employee.

vi) Temporariness

An E-2 applicant does not need to maintain a foreign residence in order to qualify.
However, the individual must show an intent to return to Canada after his work in the
United States is complete. A statement of intent to return to return to Canada is
often sufficient to satisfy this requirement.


E-2 applications may be approved for 5 years by the U.S. Consulate. However, upon
entry to the U.S., the individual will receive an I-94 valid for 2 years. At the
expiration of the 2 years, the E-2 individual will need to obtain a new I-94. The
easiest way to obtain a new I-94 is simply to travel to Canada and make a new entry
into the United States.

Helpful Advice for E-2's

It is important to have strong proof of "money in" and "money out" to include copies
of checks, bank statements, loan documents etc. Investments may include a transfer of
equipment as well as cash. In addition, the economic benefit to the U.S. is an
important factor, so you should show that employees will be hired. It also helps to
show a "ripple effect" to other U.S. businesses based on your presence (suppliers,
contractors etc.)

The above represents only a "guide" or "outline" of the E-2 process for a Canadian.
Our office has handled many E-2's for Canadians, and I strongly suggest you consider
you consider utilizing professional representation.

For more information on E-2's, please feel free to visit my firm's web site at


Andrew M. Wilson, Esq. [email protected]

[email protected] (Massood) wrote in message
news:<[email protected]. com>...
    > What forms do I need to apply for E2 visa from Canada? How long does it take? What
    > documents do I need? Do I need a lawyer?
    > Thx so much for your help.
Old May 4th 2002, 4:30 pm
Posts: n/a
Default Re: E2 - how to?

Thank you so much Mr Wilson. I admire your patience and generosity to share info.
What forms should I use? How much would you charge me?
Old May 5th 2002, 6:30 am
Andrew M. Wilso
Posts: n/a
Default Re: E2 - how to?

We work on a consultation basis for every case we handle. We charge $180 for the
consultation, and there is no time limit. In fact, many people call hours or days
later for follow up questions/information.

During the consultation, we review all of your credentials, immigration history, and
immigration goals. Based on your situation and goals, we then develop a short-term
and long-term case plan to meet your needs. If you decide to retain us to handle your
matter, we credit the $180 towards your fee. Therefore, those who retain us receive a
free consultation.

If you would like to schedule a consultation, call me anytime at 716-854-7525.

As far as a checklist goes for an E-2, here is a smaple list for you to understand
the necessary documents involved:

• Copy of facepage of passport;

• Copy of Articles of Incorporation or Organization of U.S. company;

• Copy of stock certificates, etc. of owners of U.S. company;

• Resume of individual;

• Financial Statements or Business Plan (if new company);

• Letter from corporate attorney verifying ownership;

• Proof of commitment of funds;

• Copy of agreements if purchased existing business;

• Estimates of cost to establish new business;

• Proof of investment (i.e. copies of checks, receipts etc.);

• Proof of source of funds;

• List of employees;

• Copy of lease, bills etc. to show activity;

• Form DS-156 and supplement;

• Filing fee and photographs.

For our Canadian E-2 clients, we draft all the necessary forms/paperwork and package
the application for filing with the U.S. Consultae in Toronto. We also monitor and
lobby your case with the E officer in Toronto, particularly if there are any
marginality or other difficult issues.

If you have any questions, feel free to contact me anytime.


Andrew M. Wilson, Esq. [email protected] 716-854-7525

[email protected] (Massood) wrote in message
news:<[email protected] om>...
    > Thank you so much Mr Wilson. I admire your patience and generosity to share info.
    > What forms should I use? How much would you charge me?

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