When your E2 Visa Business Changes:
Requirement 1. – As a treaty investor, you must be coming to the United States to invest in a new or existing enterprise.
U.S.C.I.S (US Citizenship and Immigration Services) defines an E-2 investment as the placing of certain capital, (including funds and other assets), at risk in the commercial sense with the end objective of generating a profit. Your investment may be for the purpose of purchasing a pre-existing business. establishing a new business venture. Regardless of which, you must demonstrate that the capital you are investing is substantial.
Requirement 2 – Your investment must be in a bona fide enterprise and may not be marginal.
An investment that is considered ‘bona fide’, is an enterprise that is a real, active commercial or entrepreneurial undertaking which produces tangible services or goods for profit. Such enterprise cannot be an idle investment held for ‘potential appreciation’, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise.
A marginal enterprise is considered one that will not generate more than enough income to make a significant economic contribution or provide a minimal living for you and your family.
Upon approval of an E-2 investment, the investor is permitted to work solely at the company he/she founded (or Purchased) and the company must administer the activities previously specified on the application at the time of submission. Of course there are instances where a business owner may want to expand or change the E-2 business. It is then, that the question arises of whether or not the investor must officially address this change in status, structure, etc.
If a business change is a major one, the investor should ask from the Consulate for an approval for this change in business activities. This process differs depending on the Consulate, but it involves emailing the Consulate directly find out what their individual criteria is. Some consulates just ask petitioners based on past requests, to send in evidence of the new business (eg. New activities, business plan, etc.) and based on that evidence they approve or deny the change.
The consulate could ask you to refile your E-2 application, but it depends on the changes that occurred or are occurring. It must be said that this request is only needed if the business change is substantial.
For example, if you have an E-2 visa approved for a restaurant and then you expand your restaurant business to include a bar. It is unlikely that your business has changed enough to warrant a re-classification. However, if you were initially approved as a wedding photography business and you started an auto repair shop in the back, then this would clearly represent a substantial change in business.
Filing your change with the USCIS in the United States is also another possibility. This again, is only done when there has been a ‘substantive change’ in the business. A substantive change is defined by USCIS as follows:
“A fundamental change in the employing entity’s basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed.” Is considered ‘Substantive change’.
When the USCIS deems the entity as having undergone ‘substantive change’ then filing of a new Form I-129 Application will become necessary. The Filing of Form I-129 with the USCIS facilitates the process of seeking and obtaining approval of a ‘substantive change’. In this case the E-1/E-2 Classification Supplement, the fee of $325 as well as an appropriate explanation and supporting documentation must also be provided at the time of the filing.
A ‘substantive change’ in business activities is the key here. When looking at the new aspect(s) of your business, can you make a rational from the new business to the current one. If you can make this rational link, then request for amendment may not be required.
When drafting your business plan and describing your business and submitting your E-2 application, keep the above, key factors in mind.
For example, the primary business activity in your business plan may be: wedding photography, but then may also describe additional services, like; ‘wedding consultant’, ‘nutrition planning’ for weddings, etc.
The consideration of future possibilities when you submit your application, may eliminate the need to get additional approvals through those government channels.