The New Treaty Investor (E-2) Visa Application Procedures at U.S. Consulate, Toronto

_ a b toronto consulate.jpgEffective February 1, 2011, the U.S. Consulate in Toronto has implemented a new procedure to schedule appointments for the E-2 Treaty Investor Visa. The new system will require applicants to pay the fee and schedule an appointment prior to submitting the completed E-2 application to the consulate. This new procedure will affect many of our clients in Columbus, Ohio, who routinely renew their E-2 visas at the U.S. Consulate in Toronto. While the law remains the same, the procedures for a proper E-2 visa package have changed substantially. This article addresses the new procedures for an E-2 visa.

Required Documentation for Treaty Investor (E-2) Visa

  1. Confirmation of appointment
  2. DS-160 confirmation page for all applicants and dependents
  3. DS-156E in paper form
  4. Dependents – must submit a marriage certificate for spouse and birth certificates of any dependent children.
  5. Signed statement of the applicant’s intentions regarding the temporary nature of their stay in the United States.
  6. One 2×2 passport-style photograph for each applicant (if your photograph could not be uploaded to your online DS-160)
  7. A cover letter summarizing the requirements for an E visa and how the applicant(s) fulfill(s) them.
  8. Comprehensive Index/Table of Contents.
  9. Supporting documentation for E-2 status

As you can see, the guidelines for an E-2 visa at the U.S. Consulate in Toronto are onerous. One mistake in the form of the applicant can be doom for the applicant. An applicant must establish that the trading enterprise or investment enterprise meets the requirements of the law, and complies with the many requirements for the E visa classification. The consular officer may provide the applicant with special forms for this purpose. The applicant can expect the consular officer to request additional documentation, to make a determination about eligibility for a treaty trader or treaty investor visa. It is impossible to specify the exact documentation required since circumstances vary greatly by applicant.

Treaty Investor (E-2)
The Treaty Investor (E-2) visa is for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. For a list of treaty countries, please see this website.

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

Eligibility

  • The investor must be a national of a treaty country.
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States.
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • The investor must be coming to the United States to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

Family Information/Derivative Visas
An applicant’s spouse and unmarried children under 21 years of age may apply for a visa to accompany or follow the principal applicant to the United States. If eligible, the family members will be issued a visa of their own based on the principal applicant’s original visa. The principal applicant must be able to prove that the family can be supported financially during the stay in the United States.

  1. The spouse of the principal applicant is permitted to work through work authorization; however, the children are not permitted to work.
  2. Children with a derivative visa may attend either public or private schools.
  3. A derivative visa cannot be issued to partners who are not legally married. They will have to apply for a Visitor Visa.

When applying for a derivative E-2 visa after the principal visa applicant has received a visa, the derivative visa applicant must submit certain documentation in addition to the required E-2 application documents:

Accompanying family members, only a spouse and unmarried children under 21, need a photocopy of marriage certificate for spouse and long-form birth/adoption certificates (showing both parents) for children. These documents need to be carefully submitted with the DS-160 confirmation to ensure proper handling. These documents should be civil documents that are issued under the original seal, stamp or signature of the government office of record. Notarized copies, religious documents and hospital records are not acceptable. The original copies of the civil documents are required on the day of the interview.

Duration of Stay
A visa is not a guarantee of entry into the United States. An officer of the Customs and Border Protection Agency (CBP) at the Port of Entry determines whether or not a traveler may enter the United States and how long they are permitted to stay. The validity of the visa is not associated with the authorized duration of stay; while an applicant may have a visa valid for 5 years, the authorized duration of stay could be much less. Although E-2 visas will generally issue for the maximum amount of time, the foreign national must always abide by the time limit given on the I-94 to ensure no overstays or out of status.

How to Contact Us
If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.