US E2 Visa for Foreign Investors in Thailand

You will typically need a visa if you are a foreign entrepreneur or investor looking to conduct business in the United States. Fortunately, if you are a citizen of a country with a treaty of commerce and navigation with the US, you may qualify for special nonimmigrant E visas.

These visas are designed to allow business owners, essential employees, and their families to reside in the US. The E2 visa, in particular, is designed for treaty investors and their employees to live and work in the US while actively managing and developing an investment in a US enterprise.

The US E2 visa is often referred to as an investment or entrepreneur visa because it requires a substantial investment in a genuine American business. The definition of "substantial" can vary, but it generally means enough capital to sustain the business and generate jobs or income. If you have significant funds to invest and aim to start or run a US company, the E2 visa can help you achieve your entrepreneurial goals.

General Requirements for an E2 Visa

The E2 visa allows you to open a new business, operate an existing business, work as an essential employee for an E-2 business, or join your E-2 family member in the US. You may be eligible for an E2 visa if you fall in any of the following categories:

• Treaty Investor: If you invest a substantial amount of capital in a US business you may qualify as the principal investor for an E2 visa.
• Employee: Executives, managers, and specialized employees of a US E-2 company may receive derivative E-2 visas if they are from the same country as the principal investor.
• Dependent: If your spouse or parent is an E-2 essential employer or treaty investor, you may qualify for a dependent E2 visa (E-2S or E-2Y).

Requirements for E-2 Treaty Investors

If you are applying for an E2 visa as an investor, you must prove that you and your business investment meet the following criteria:

• Treaty Country Nationality: You must be a citizen of a country that has a treaty of commerce and navigation with the United States. A comprehensive list of eligible nationalities can be found on the official website of the US Department of State (DOS). Citizens of Thailand are eligible for E-2 Treaty Investor visas (as well as the E-1 Treaty Trader visa).
• Nonimmigrant Intent: You must demonstrate a clear intention to reside temporarily in the US to develop and direct your business. You may be asked to provide a signed letter stating your intent to leave the country when your authorization expires.
• Substantial Investment: You must have invested, or be actively investing, a significant amount of capital in a legitimate business in the United States. This investment must be at risk of loss in a commercial sense. While there is no strict minimum investment amount, typically you should plan to invest at least 100,000 USD.
• Legitimate US Enterprise: You must invest or intend to invest the funds in a bona fide US business. A bona fide enterprise is a real, operational business that produces goods or services to make a profit. It must be legally established and operating according to the laws of its location.
• Active Management: You must be coming to the US to actively manage and develop your investment. Therefore, you must own at least 50% of the business or hold a key managerial position or primary decision-making power.
• Profit Potential: Your investment should demonstrate the potential to generate a profit within five years.
• US Workforce: The business should create employment opportunities for lawful US workers.
• Business Relations: Your company must actively engage in commercial activities with other US businesses.

Marginal enterprises, speculative ventures, or passive investments, such as real estate, are ineligible investments for E2 visa purposes.

Substantial Capital Investment Requirement

A substantial investment should:

• Be proportionate to the business: The amount invested should be significant relative to the total cost of the business.
• Demonstrate commitment: Your investment funds must be at risk of loss to demonstrate your dedication to the business's success.
• Support business growth: The funds should be directly used to expand and develop the enterprise or to create and maintain a successful operation.

Finally, your investment funds must be lawfully obtained.

Active Management Requirement

If you are applying for the E2 visa as the principal investor, you must demonstrate your active involvement in managing the US enterprise. There can be many partners from the treaty nation but only one partner can enter the United States on an E2 visa to manage the business operation. You can demonstrate your active management of the investment enterprise through one of the following:

• Majority Ownership: Owning more than 50% of the business is the most straightforward method to establish control.
• Operational Control: In certain circumstances, you may demonstrate control by holding decision-making authority and performing operational or managerial responsibilities. For instance, serving as the sole CEO with exclusive control over large-scale business operations may satisfy the active management requirement.

E-2 Visa Essential Employee Requirements

The E-2 treaty investor visa category allows certain classes of employees to receive derivative E-2 visas if they meet the following conditions:

• Essential Personnel: Your employees must hold supervisory or executive positions essential to the operation of the business or have special skills necessary for the success of the business.
• Employee Status: They must meet the legal definition of an employee, meaning that they are directly employed by the business or have an employment contract.
• Nationality Requirement: Employees must be citizens of the same country as you, the primary E2 visa holder.

Executive or Supervisory Roles

To qualify for an E2 visa as an executive or manager, your employee must primarily oversee the day-to-day operations of the US bona fide enterprise and supervise other employees. Routine, non-managerial tasks should constitute a minor portion of their duties. The size of the business is a key factor; for instance, managing a two-person office typically does not meet the executive criteria.

Essential Skills Employees

E-2 visas may also be granted to foreign nationals possessing specialized knowledge essential to the business's efficient operation. This knowledge must be unique and not readily available within the US workforce. To qualify, your employee must demonstrate the requisite experience and training to acquire these skills.

In some cases, ordinarily skilled workers can be considered essential employees for training purposes or to establish a start-up enterprise.

E-2 Investment Visa Dependents

E-2 treaty investors and employees may bring their spouses and unmarried children under 21 to the United States. Unlike essential employees, dependents do not need to be the same nationality as the principal visa holder.

These family members can apply for E-2 dependent status and typically receive the same length of stay as the primary visa holder. E-2 children can enroll in public or private schools and higher education in the United States, while spouses receive automatic employment authorization after entering the US.

How to Apply for the E2 Visa as a Treaty Investor

Before applying for the E2 visa, you must set up your E-2-eligible business.

Step 1 - Form the company:

Choose a business structure such as an LLC, corporation, or partnership and create the business. Ideally, you should ensure you own at least 51% of the company. You are allowed to set up a company in the US before submitting the E-2 application because these initial steps are not considered "work" for immigration purposes. However, you cannot operate or manage the business without work authorization and E2 visa approval.

Step 2 - Open a business bank account:

This account is necessary for company operations and for your visa application. You must deposit funds into the account and spend them on business expenses. While spending funds before visa approval may seem uncertain, it is necessary to demonstrate that your investment is at risk.

Once you have set up your business, you can prepare your visa application. The process differs depending on if you are applying from within the US or from Thailand.

Applying from Within the US

To apply for an E2 visa while in the United States, you must complete the following steps:

Step 3 - Gather documentation:

Prepare business documents (such as your business plan, financials, and proof of investment) and evidence of your eligibility.

Step 4 - File a nonimmigrant petition:

Complete and submit Form I-129, Petition for a Nonimmigrant Worker with US Citizenship and Immigration Services (USCIS). If your family members are applying for dependent E-2 visas, you must submit a Form I-539, Application to Extend/Change Nonimmigrant Status. You should include payment addressed to the US Department of Homeland Security (DHS).

Step 5 - Await decision:

USCIS will notify you of the decision. If approved, your E-2 status starts on the date specified on the Form I-797. You are immediately authorized to work for the business in which you invested.

Applying from Outside the US (Consular Processing)

The process for applying for an E2 visa from outside the US varies by embassy. Generally, you will need to:

Step 3 - Complete the Form DS-160:

Fill out the Form DS-160, Nonimmigrant Visa Electronic Application for yourself and your family members. As the principal applicant, you will also need to submit a Form DS-156E.

Step 4 - Pay for the application:

Pay the non-refundable visa fees for all applicants and maintain receipts for your records.

Step 5 - Receipt confirmation:

After your payment has been processed, you will receive an email confirming that your application has been received. If your package is incomplete or incorrect, it will be returned. Otherwise, you will be notified to schedule an interview once your application has been reviewed.

Step 6 - Attend consular interview:

If you are a Thai citizen, you must attend a visa interview at the US Embassy in Bangkok. Be ready to discuss your business and investment plans.

Step 7 - Receive visa and travel:

If your application is approved, your passport will be stamped with the E2 visa, usually valid for two years. You can then use the visa to enter the US and work. You have six months to enter the US after your visa is approved.

Required Documents for E-2 Principal Investors

E-2 applications for principal investors must be clearly organized and include the following evidence:

• Biographic Information:
  • Valid passport
  • Evidence of your credentials such as CV or resumé, university degrees, vocational certificates, etc.

• Cover Letter stating that your investment meets all the criteria for an E2 visa and that you intend to leave the US when your E status ends.

• Proof that the business is owned by a treaty country national:
  • For corporations, this may include:
    • List of owners and ownership percentages
    • Articles of incorporation
    • Stock certificates and stock ledger
    • Shares/stock certificates indicating distribution of ownership
    • Corporate matrix
    • Sample of recent stock quotations (if publicly traded)
  • For private companies, this may include:
    • List of owners and ownership percentages
    • Articles of organization
    • State registration of ownership
    • Business registration document
• Proof of substantiality:
  • If the business is an existing enterprise, you can provide a tax valuation and market appraisal.
  • If you are investing in a new business, you can provide a market estimate, Chamber of Commerce estimates, and Trade Association statistics.

• Proof of investment process: You should provide documentary evidence of each relevant investment ordered chronologically from oldest to newest.

• Proof that the investment enterprise is operational: Evidence might include sales receipts or invoices, client lists and letters, lease agreements, photographs of the enterprise, reviews on social media, and other proof.

• Evidence that the enterprise is more than marginal: You should provide the business' three most recent tax returns, the most recent W-2 forms for your employees, and your three most recent personal income tax returns from the Internal Revenue Service (IRS).

• Business Plan: This is a detailed plan that demonstrates the enterprise’s capacity to generate a profit within a maximum of five years and has a significant economic impact.

• Organization Chart: This should list names, positions, and legal status (e.g. American citizen, Legal Permanent Resident, or E visa holder) of employees currently working at the company.

E2 Visa Costs

The costs to apply for an E-2 visa can vary depending on whether you apply from Thailand or the US.

Application Costs from Within the US

If you are applying for an E2 visa while in the US on another valid visa, you can expect the following costs and fees:

• Nonimmigrant Petition Form I-129: The standard filing fee for an E-2 petition is 1,015 USD.
• Nonimmigrant Application Form I-539: If you have dependents (spouse or children under 21), you will need to file this form for a fee of 470 USD per person (420 USD if filed online).
• Premium Processing: For faster processing, you can submit a Form I-907 for an additional 2,805 USD. With premium processing, USCIS will adjudicate your case within 15 business days.

Application Costs from Outside the US

If you are applying for the E2 visa from Thailand, you will need to pay the Form DS-160, Online Nonimmigrant Visa Application fee. In 2024, the Form DS-160 costs 315 USD per applicant.

Please note:

There is no reciprocity fee for Thai nationals applying for the E2 visa, but principal visa applicants and dependents of other nationalities may be required to pay an additional fee.

E2 Visa Processing Times

Most E-2 applicants receive a decision within six months.

If you would like to expedite the process, premium processing is available for change of status applicants for an extra fee. This service guarantees a decision within 15 days.

E2 Visa Validity

E2 visa holders are typically granted an initial stay of two years. You can request extensions in two-year increments, with no limit to the total number of extensions. However, you must maintain a foreign residence and demonstrate your intention to return to your home country. If USCIS believes you intend to live in the US permanently, they may deny your extension application.

Employment Authorization on the E2 Visa

As the principal E2 visa holder, you and your essential employees are authorized to work only for the E2 enterprise in the United States. However, E-2 dependent spouses have unrestricted employment authorization to work anywhere in the US.

Typically, the E2 visa itself serves as your Employment Authorization Document.

Travel on the E2 Visa

E-2 treaty investors and essential employees can travel abroad and re-enter the US without needing a new visa. When traveling outside the US, you will normally be readmitted for up to two years, provided you meet the necessary immigration requirements at re-entry.

However, this automatic re-entry privilege does not extend to your family members unless they accompany you or return separately within the same readmission period.

E-2 Investment Visa Benefits

The E2 visa offers the following benefits:

• Business Management and Staffing: As an E2 visa holder, you can bring key personnel, including high-level executives and specialized employees, to the US to help manage your business.
• Family Benefits: You and your employees can bring your spouses and children under 21 to the US. Spouses can legally work, and children may attend school.
• Visa Extension Flexibility: The E2 visa can be extended in two-year increments with no limit to the number of extensions.

E-2 Investment Visa FAQs

What is the difference between the E-2 and E-1 visas?

The E-1 and E-2 visas are both nonimmigrant visas designed for foreign entrepreneurs seeking to do business in the United States. However, they cater to different business models.

E-1 Treaty Trader visa

is suitable if you are engaged in substantial trade between the US and your home country. This visa focuses primarily on the volume and continuity of trade.

E-2 Treaty Investor visa

is appropriate if you have made or are actively in the process of making a substantial investment in a US enterprise. The investment must be significant enough to support the operations of the enterprise and generate income and create jobs.

While both visa categories require you to be from a treaty country, the specific requirements, investment levels, and business activities differ.

What is the difference between the E-2 and EB-5 visas?

If you plan to make a larger investment of 800,000 USD or more, you may consider the EB5 Visa. This immigrant visa requires a greater investment but offers a direct route to a green card.

Can I change jobs on an E-2 visa?

If you are an E-2 principal investor or essential employee you cannot change jobs on the E-2 visa. You are restricted to working solely for the E-2 enterprise. However, E-2 dependent spouses can switch jobs freely.

What happens if I want to change the operations of my E-2 business?

If you plan to make significant changes to your E-2 business (e.g. mergers, acquisitions), you must first obtain USCIS approval. This requires a new Form I-129 along with evidence that you continue to meet the eligibility requirements for an E-2 visa.

Do E-2 visa holders pay taxes in the US?

Yes, E-2 visa holders are required to file federal and state tax returns for all income earned in the United States.

Do I need a sponsor for an E-2 visa?

No, unlike other visa types, an E-2 visa does not require a US employer or family sponsor.

Can I travel outside the US on an E-2 visa?

Yes, E-2 visa holders can travel internationally. Upon re-entry, you are typically granted an automatic two-year period of readmission.

Do I qualify for the E-2 visa if I obtained treaty country nationality by investment?

You may still qualify for the E-2 visa if you obtained your treaty country nationality by investment. However, USCIS may request additional documents to verify that you lived in that country for at least three continuous years before applying for the E-2 visa.

I hold dual nationality. Does this affect my E-2 visa application?

Generally, having dual nationality doesn't pose a problem for E-2 visa applicants. However, you should use the same passport for both entering the US and applying for your E-2 visa.

Can I own an E-2 business with a partner of a different nationality?

Yes, it's possible to own an E-2 business with a partner from a different country if you are both from E-2 treaty countries. If you and your partner each own 50% of the business and share equal control, your business can be considered to have dual nationality. This means you can potentially hire essential employees from both your home countries on E-2 visas.

Can I use an inherited business to obtain an E-2 visa?

Unfortunately, inheriting a US business does not qualify as a basis for obtaining an E-2 visa. If you inherit a US business, you may consider selling the business and using the proceeds to invest in a new business that qualifies for an E-2 visa.

What types of investments typically do not qualify for an E-2 visa?

USCIS will often reject E-2 applications for the following investments:

• Ownership of undeveloped land without active business operations
• Investment of uncommitted funds in a bank account
• Speculative investments without active involvement
• Businesses designed solely to meet the investor's basic living expenses
• Safe, protected investments with no risk of loss

Do I have to spend the E-2 investment funds before receiving my visa?

E-2 visa regulations stipulate that the funds for the investment must be "irrevocably committed" before the visa can be granted. This requirement can be fulfilled by demonstrating that your funds are already at risk.

Funds can also be considered irrevocably committed if they are held in an escrow account pending only the issuance of the E-visa.

How Siam Legal Can Assist You with Your E2 Visa

Siam Legal offers comprehensive support for E-2 investment visa applicants. Our services include:

• In-depth guidance on E-2 visa requirements and the business formation process.
• Expert advice on investment transfers, tax ID acquisition, and financial account setup.
• Comprehensive business plan development and document preparation.
• Efficient E-2 visa form completion and case management.
• Professional representation and interview preparation for the consular process.
• Ongoing support and advice for your E-2 business after visa approval.

Reach out to Siam Legal today to start your E-2 visa application.

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