For many entrepreneurs, the idea of launching and leading a business in the United States is more than just a goal—it’s a strategic move. But for foreign nationals who want to build a U.S. enterprise without pursuing a green card, the E-2 investor program stands out as one of the most flexible and founder-friendly pathways available.
The E-2 treaty investor visa allows nationals of treaty countries to enter the U.S. by making a substantial investment in a U.S.-based business. It’s a nonimmigrant visa that supports not just capital flow into the U.S. economy, but the entrepreneurial energy behind it.
E-2 in a Nutshell: Who Qualifies?
These are the E-2 visa requirements:
- Be a national of a country that maintains a qualifying treaty with the United States.
- Make a substantial investment in a real and operating U.S. business.
- Intend to enter the U.S. to develop and direct the enterprise—or, in some cases, work in a key capacity within the business (e.g., executive or essential employee).
- Show that the business is more than marginal, meaning it should generate income beyond supporting the investor and their family.
- Maintain the intent to depart the U.S. when E-2 status ends.
A notable benefit: E-2 spouses are eligible for work authorization incident to status—meaning they can work in the U.S. without needing to file a separate application.
The full E-2 treaty countries list is maintained by the U.S. Department of State, and it’s regularly updated. For instance, Portugal was added in 2024, giving its nationals access to both E-1 and E-2 visas. You can find the list here.
Marginality is a key evaluation point for adjudicators. According to the Foreign Affairs Manual (FAM), a business is considered marginal if it doesn’t have the capacity to generate more than minimal living income within five years. Strong evidence—like revenue forecasts, job creation targets, and market potential—can tip the scale.
2023–2025 Update: The New Three-Year Domicile Rule (Who It Affects)
In late 2022, Congress passed a notable amendment affecting the E visa category. Under Section 5902 of the FY2023 National Defense Authorization Act (NDAA), individuals who obtain nationality through financial investment (such as citizenship-by-investment, or CBI programs) must prove they’ve resided or been domiciled in that country for at least three years before applying for an E-2 visa.
In plain terms: if an applicant gains a treaty passport through investment, they’ll now need to establish and document real ties to that country—tax filings, leases, utility bills, or bank statements are all common pieces of evidence. While U.S. law doesn’t give a strict definition of domicile, this change adds complexity for investors who take the CBI route through countries like those in the Caribbean or parts of Europe.
Why it matters: This rule sets clearer expectations for applicants considering fast-track nationality paths and underscores the importance of genuine ties to one’s treaty country.
How Much Is “Substantial”? Demystifying the Investment
Unlike programs that set a numerical threshold, the E-2’s “substantial investment” test is context-driven. There’s no set minimum. Instead, adjudicators evaluate whether the capital is:
- Proportional to the total cost of either purchasing an established business or establishing a new one.
- Sufficient to ensure the investor’s commitment to the business’s success.
- Placed at risk and irrevocably committed to the enterprise.
Investments can include tangible contributions—cash deposits, equipment purchases, signed leases with payment commitments, renovations, or intellectual property. Funds must be personally controlled and lawfully sourced, and speculative or uncommitted capital doesn’t count.
To avoid falling into the “marginal” business trap, applicants should tie their investment plan closely to hiring forecasts and revenue expectations, demonstrating a clear path to economic contribution and job creation within five years.
E-2 Pathways: Consular Visa vs. Change of Status (Pros & Cons)
There are two primary routes to secure E-2 status:
1. Consular Processing
- File Form DS-160 and, for principal applicants or employees, DS-156E.
- Attend an in-person visa interview at a U.S. consulate—usually in the applicant’s country of nationality or legal residence.
- Upon approval, the visa allows for multiple entries over the validity period.
Some consulates publish their own E-2 package instructions, including document formats, timelines, and interview protocols. Applicants should always check post-specific requirements before filing.
2. Change of Status via USCIS
- Ideal for those already in the U.S. in valid nonimmigrant status (e.g., B-1, F-1).
- Premium processing may be available, offering faster turnaround.
- The downside? The change grants status but not a visa stamp, meaning that once the applicant leaves the U.S., they’ll need to apply at a consulate to reenter.
Which to Choose?
| Scenario | Recommended Route |
| In the U.S. and need speed | Change of status |
| Based abroad or frequent traveler | Consular processing |
| Holding CBI passport with new 3-year rule | Likely consular; post-specific advice needed |
Building a Compelling E-2 Package: What to Prepare
A successful E-2 visa for entrepreneurs hinges on the strength of the application. Key elements include:
- E-2 Business Plan: A robust document with five-year financials, market analysis, staffing plans, and strategies that meet the non-marginal enterprise test.
- Ownership & Funds: Evidence showing lawful source and path of funds (e.g., sale of property, savings, inheritance) and proof that the investor has control over the capital.
- Corporate and Operational Documents: Company formation papers, office leases, supplier invoices, business licenses, payroll setup, and any relevant contracts.
- Spouses and Dependents: E-2 spouses are now automatically work-authorized, with I-94 records noting an “S” annotation to confirm eligibility. Children under 21 may attend school but aren’t work-eligible.
E-2 vs. EB-5: Different Tools for Different Goals
While both the E-2 and EB-5 programs cater to investors, their objectives and requirements differ significantly:
- E-2 visa for investors: Nonimmigrant, renewable, tied to a treaty country. Requires a “substantial” investment in a viable business but no set job creation threshold.
- EB-5: Immigrant visa leading to a green card. Requires investing at least $800,000 (as of 2024) in a new commercial enterprise and creating 10 full-time U.S. jobs.
For many founders, the E-2 offers a faster, lower-cost entry point to the U.S. market. Later, they can evaluate whether permanent residence via EB-5—or another path—is the right move.
Common Pitfalls That Sink E-2 Cases (and How to Avoid Them)
While the E-2 investor program offers a highly accessible route for foreign entrepreneurs, it’s also complex—and even small mistakes can derail a strong application. Below are common pitfalls that trip up applicants, along with ways to avoid them:
Under-capitalization
One of the biggest red flags in an E-2 application is an investment that doesn’t align with the scale or nature of the business. For example, opening a brick-and-mortar restaurant with only $30,000 may raise concerns about the viability of the operation. The adjudicator must be convinced that the investment is not only substantial, but also sufficient to support business operations and future growth.
Weak or Generic Business Plans
An E-2 petition must include a business plan that shows more than just intent—it must prove viability. USCIS and consular officers look for comprehensive, detailed plans that outline real job creation, market opportunity, and revenue forecasts. A templated, vague plan with unrealistic projections can quickly erode credibility.
Unclear Source or Path of Funds
U.S. immigration authorities are highly focused on the lawful origin and traceability of investment funds. If the funds appear to come from unverified sources, or if transfers are not documented clearly, the application may be denied.
Ignoring the New 3-Year Domicile Rule
For applicants who obtained treaty nationality through a citizenship-by-investment (CBI) program, the FY2023 NDAA introduced a significant change: they must now demonstrate three years of domicile in that treaty country before applying for an E-2 visa. Overlooking this requirement has already led to increased denials at some posts.
Disregarding Post-Specific Instructions
Each U.S. consulate sets its own rules for how E-2 applications should be prepared and submitted. Some require a digital submission in PDF format with strict page limits. Others expect tabbed binders with hard copies. Submitting in the wrong format—or omitting required documents—can cause delays or outright denials.
Quick Start Checklist for Founders
✅ Confirm treaty nationality on the official DOS list.
✅ Ensure your business model and investment level match industry norms.
✅ Draft a realistic 5-year job-creating plan.
✅ Choose between change of status or consular strategy.
✅ If applicable, prepare documentation for E-2 spouse work authorization.
✅ For CBI nationals, gather proof of 3-year domicile ties.
Disclaimer & Next Steps
This article is for general information and isn’t legal advice. Consult an E-2 investor visa attorneys at Lorenzo Law Group for advice tailored to your individual case.
