Bad News 2023: E2 Visa for Spouses & Dependents major changes coming!!!

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Want to keep up to date on the latest changes in the E-2 Treaty Investor Visa Program? Then you are at the right place. In this video, attorney Jacob Sapochnick shares new updates for spouses and dependents of principal E-2 visa holders, as well as information about minimum investment requirements for E2 investors, and new requirements for E3 visa applicants.

Overview

New changes governing regulations for spouses and children of E visa holders, and minimum investments amounts, have appeared in the Foreign Affairs Manual (9 FAM 402.9-9) effective on May 1, 2023.

Substantiality Test

One of the requirements of the E2 visa program is to ensure that the amount of capital being invested into your business is “substantial” for the type of commercial enterprise you establish or acquire, while considering the nature of the business.

The law does not set a minimum dollar figure nor minimum amount of investment that is considered to be “substantial” for E-2 visa purposes. However, the Foreign Affairs Manual considers an investment to be “substantial” if it (1) meets the proportionality test (2) is sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise and (3) is of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

The proportionality test determines whether an investment is substantial by weighing the amount of qualifying funds invested against the cost of the business.  If the two figures are the same, then the investor has invested 100 percent of the needed funds in the business; such an investment is substantial.

Clarification of the Substantiality Test for E2 Renewal Applicants

Section 9 FAM 402.9-6(D) of the Foreign Affairs Manual (FAM) states that once an E2 investor has established that he or she has invested a substantial amount of capital in his or her business to the satisfaction of an Immigration Officer, the applicant generally does not need to be evaluated under this criterion again unless there has been a change in ownership (for example where a sale of the business has occurred).

Therefore, in practice, upon renewing an E2 visa (with USCIS or a Consular office overseas), an investor generally does not need to provide evidence that they have made a substantial investment if there has been no change in ownership since being issued their E2 visa.

This provides a great advantage for investors who are growing their business. It will also allow investors to remain in the United States without the hassle of re-establishing the substantiality of their investment.

Important Changes for Family Derivatives of E Visa Holders

As you may be aware, spouses and children of E visa applicants may accompany or “follow to join” a principal E visa applicant as his or her derivatives in the same classification as the principal applicant.

Spouses and children of E visa principals who possess the same nationality of the treaty country are issued visas valid for the maximum validity period authorized by the reciprocity schedule of their country of nationality.

For example, if the E visa principal applicant is a Mexican national (a participating treaty country) he is eligible to receive an E-2 visa that is valid for a 4-year period. Accordingly, if his spouse and children are also Mexican nationals, they are also eligible to receive a 4-year visa.

What happens when the E visa principal applicant’s spouse or child is a national of a different treaty country?

In this situation, the Foreign Affairs Manual dictates that the family derivative will be issued an E2 visa according to the reciprocity schedule of his or her country of nationality (not the nationality of the principal applicant).

For example, let’s imagine the E visa principal applicant is a Mexican national but his wife and child are nationals of France. Both countries participate in the E2 visa program but have different maximum validity periods for the E2 visa. In this example, the wife and child would receive E2 visas valid for a maximum period of 2 years, because this is the maximum E-2 validity period for the country of France, while the principal applicant would receive a 4 year visa.

This presents an interesting dilemma because many countries participating in the E2 visa program have shorter validity periods when compared to other countries. For example, Canadian and Romanian nationals are entitled to 5-year visas, while Israeli nationals are entitled to 2-year visas.

On the bright side, if your family derivative is a national of a non-treaty country, you will not need to worry because your family members will be entitled to the same E2 visa validity period as the principal applicant.

Intent to Depart for E3 visa Applicants

Lastly, E-3 visa applicants will need to demonstrate their intent to depart the United States at the end of his/her authorized stay, by showing proof of ties to their home country.

Conclusion

We hope you found these updates helpful. You may wish to consider them when planning your E visa filings moving forward.

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