The Ultimate Guide To The E-2 Visa For International Student Founders

And an overview of other possible visa options

Quick sidenote: the author of this specific article is not the same author as that of the original, main StanfordGuide and StanfordGuide articles. The author of this specific article, RK, chooses to remain anonymous but is more than happy to answer any specific questions about the E-2 visa and the E-2 process visa. Email me, the StanfordGuide author, at thestanfordguide@gmail.com and I’ll setup an intro between you and them.

Hello!

This is a primer to the E-2 visa, specifically designed/targeted, but most definitely not limited to, technology type businesses and their aspiring international founders.

If you’re reading this, chances are that you’re an aspiring business founder. Chances are also that you’re not an American citizen or green card holder. Finally, chances are that you’ll want to build said business in the United States.

This scenario perfectly described me. I’m an international student — citizen of a different Western country that has historically had great relations with the US — currently, as of writing, taking time off from Stanford to work on my own things after having just acquired my E-2 visa.

I want to share my advice on the E-2 visa and the E-2 visa process. This specific visa, I feel, is super obscure and a lot of information/documentation found online is incomplete, wrong, overblown, etc. I want to add some clarity that I wish I had found when I was doing my initial research.

From my time starting to research the E-2 visa, to actually getting it, I talked to probably 6 different lawyers. A lot of them provided very conflicting information, a good number provided straight up false information. The two that provided the most similar/accurate picture of the visas were the ones I could quite easily tell were the most qualified. (The point here, being, do your research, and talk to multiple different lawyers about your case.) If you are looking for a lawyer recommendation, I cannot recommend enough both Anna Kerner from Kerner Andersson and Peter Roberts, a Y Combinator-associated immigration lawyer.

I feel I’m qualified to share advice and information on the E-2 given that I have actually gone through the whole process myself, have read pretty much every link in the first 5 pages of search results about it, and have had the opportunity to talk to a number of different lawyers about it, and seen the discrepancy in information accuracy between said lawyers. I think there’s also a gap in information online w.r.t. the intersection between the E-2 visa and technology / startups.

My suggestion is that, though some parts of the information may initially jump out as surprising (eg. expected investment amount), it’s worth reading closer into the advice and information written here because there’s a lot of different variables at play and you definitely might be able to make something work for yourself that isn’t the “norm” you often find online with regards to the E-2 visa. So read closely and don’t be dissuaded by anything at first glance.

Also, I hope this document proves extremely useful and answers a lot of questions.

Regardless, consult lawyer(s).

Starting A Business In The US

I first found the StanfordGuide about a year before joining Stanford (so about 3 years ago now) and a lot of the articles really resonated with me. I spent a lot of time in middle and high school creating things — for myself, for others, for money, for fun, etc. — and my largest motivation for coming to Stanford was to create more things and to increase the scale of the things I created. I wanted to move to America and just create things and work for myself. That’s been my dream since I was fairly young.

As an international student, though, you can’t work for yourself. You’re on a student visa, and you’re there, primarily, to study. You can work + do internships on CPT in the summers & do small on campus jobs, but things like contract work, building things and generating revenue, working on cool large scale projects, even technically speaking doing productive work where you’re not getting paid, etc. — these are all no-gos for international students. A lot of people ask if it’s okay to break the rules here. This is not legal advice: perhaps you won’t get caught at a small scale. But you need to keep it confined to that, otherwise you’re playing with fire, IMO, especially with the current administration. Definitely never a good idea to accept cash personally, though, for doing any work. I will explain more about this later.

This made the F-1 visa, and completing school, a dealbreaker for me. I was burning to work on my own ideas & continue saving up cash: this always interested me more than attending classes (which was more of a means to an end for me in high school, the end being getting into Stanford). I also realized quickly that, post graduation, I’d have to quickly figure out a long-term self employment visa; the other option being going back to my home country, and pursuing my own thing there, which to me, wasn’t really an option in the first place.

I spent a lot of time freshman year thinking about what I wanted to work on and pursue — specifically, creating a technology co-operative, so actually not technically a startup, but still in the same realm — and I soon concluded that getting a visa to be able to work for myself in the US was the most important next actionable step to pursuing what I wanted to pursue. This was during freshman year; I narrowed my options down to the E-2 visa and the O-1 visa. I then chose to pursue the E-2, after a lot of research into both and sort of half pursuing both paths. This was before the start of sophomore year. I got my E-2 visa right before the start of junior year (which started this week at the time of writing), and subsequently took time off Stanford.

You may have different motivations for building a business and getting a visa for it, right now. Maybe you have an idea you really want to create, maybe you think it’s how you’ll get rich, maybe it’s the career path you think you jive with the most, maybe it’s a lifestyle choice, maybe you really don’t want to work in industry. Either way — it’s something you need to really start thinking about now, if you’re not American, and want to do this in America.

What Are My Options?

Honestly, there aren’t many. It is going to depend on where you’re from, however. Some countries have more options, some have less.

Firstly, if you’re an American citizen, you’re fine. (Obviously.) If you’re a green card holder… you’re fine too!

So, one option is to become an American green card holder or citizen. How can you do this? There are some options, including: marrying an American citizen, ascending the immigration ladder to green card, getting a green card in a green card lottery (this exists), go back in time and have your parents give birth to you in the US… :)

In all seriousness, marriage based green card is a feasible path for a lot of people. So is, say, working in industry on an H-1B visa or O-1 visa (dual intent immigrant work visas) and then filing a green card petition. For many countries a green card can be acquired in a few years. I’ve heard for Indians/Chinese it can be harder, but I’m not too sure. There are many many different paths here, but it’s obviously not ideal if you want to start a business now rather than later. One of my friends at Stanford had two friends, both from South America, acquire a green card through the US’ green card lottery system (called Diversity Immigrant Visa). So this might be worth looking into. Another option is the EB-5 visa, where you invest around a million dollars (double check the amount, used to be ~$500k but the Trump administration recently upped it to ~$1.2mm (if I remember correctly) into some sort of venture or project in the US, creating jobs for Americans in the process. In exchange for the investment, you receive a green card and can get one for each of your dependents, too. If you or your family can afford this it’s definitely not a bad option — it’s not like you lose that money, remember, it is an investment. There is also a self-sponsor green card petition (EB-1) for those who can prove they have exceptional ability/talent in their field in a similar fashion to the O-1 visa (will discuss more about this visa soon) — though the bar is higher, but talk to a lawyer to see if you could fulfill the criteria.

But what are your options if you want to start your own business before you’ve graduated, or right after you’ve graduated, without first going into industry and getting a regular work visa or a green card?

“H-1B Visa for Entrepreneurs” is a thing. I know two Indian founders in a startup with 3 founders, in which one was American, who were on H-1Bs for their company. The caveat is that they had one American co-founder, in a position to fire them; you need that employee employer relationship, but this is hard if you’re the first employee! (Having an investor can solve that / board of directors, if this is something that makes sense for you and your company.) Your degree also needs to be related to the company and its field, etc.

What if you don’t have a college degree!? (This describes me.)

An O-1, where you prove that you’re exceptionally talented in your field, is technically also doable (if you are indeed exceptionally talented, this is hard at a young age, but def doable!) and you can “self-sponsor” for your own company, but again you will need to ensure there is someone in a position of power to fire you (there has to be an employee-employer relationship). This could be an American investor, an American citizen you hire, etc., but sometimes when you’re starting up you don’t want or have (and don’t want to “install”, for the sake of the visa) these other actors or power balances into your company, especially at such an early stage. You might also not be able to! The O-1 is also a little less clear cut given how discretionary it is: I know people who have qualified for it by somewhat “gaming” the criteria, and others who are genuinely extremely talented and qualified and exceptional in their field but somehow didn’t fit into the criteria or were rejected on an opaque discretion basis.

H-1B/O-1 are both dual intent/immigrant visas and thus offer direct paths to green card.

An L-1 is also doable if your business exists outside the US and is already established, and you are coming as a manager to open a US based branch. Though I personally know much less about this visa, and I imagine similar to what I said about self-sponsored H-1B/O-1, there are requirements and hurdles and constraints, and then probably more.

If you are Australian, and Australian only, there’s the option of an E-3 work visa. Though it doesn’t “technically” support self-sponsoring, I talked to a lawyer I respect who confirmed that they and many other immigration lawyers have been successfully acquiring self-sponsored E-3 visas for the past 15 or so years. You will still need that employer-employee relationship, of course. You don’t need a degree, but you’ll need to demonstrate something like 10 years of work experience as a substitute (something like that, I don’t know the exacts), which is honestly fairly doable if you were coding as a kid and are trying to start a technology co!

If none of these options satisfy you so far — none of them satisfied me or my situation, and I didn’t want to destabilize the integrity of what I was trying to create just for the sake of getting the work visa — it very quickly comes down to an E-2 visa. The E-2 visa, I found, was very clear cut, in the sense that there is a list of things you should do, and if you do them, you should be able to get the visa. Let me explain to you what those things are.

(Sidenote: E-2/E-3/L-1 are all non-immigrant, non dual-intent.)

What Is The E-2 Visa?

The E-2 visa is an:

Investor treaty visa

Only available to certain nations (the treaty nations) — from my calls with lawyers, I had made a note that “Western nations [are] preferred”

You invest a “substantial” amount of $$$ into starting your own US business, and you get a work visa for that business

A non-immigrant visa

Ok, to break that down: the E-2 visa is an investor visa, meaning that you have to invest some tangible assets into the US and intend to generate jobs with this investment (not nearly at the scale of the EB-5, though, and you invest these assets into your own business).

It’s also a treaty visa, meaning that it is only available to citizens of the treaty nations. This website lists out all countries that qualify, so go check if your country of citizenship qualified for an E-2.

It’s a non-immigrant visa, meaning that it doesn’t have a direct path to a green card; there are indefinite approval-based renewals, and for most countries the initial period is fairly long, but you’ll need to switch to a different visa — such as O-1, H-1B, green card petition, etc., especially when your company is more established — to get on course for a green card.

Here’s how I would ELI5 it:

With the E-2 visa, you set up a US company that you own, invest tangible assets into it such that it is already “real & operating”, demonstrate intent and a real, viable plan to generate jobs and hire people into the company within the next 5 years (via a rock solid business plan and 5 year estimated financial projections), prove you have 50%+(co-founder is OK but you need to have 50%+, I’m fairly certain the 50%+ ownership just needs to be owned by citizens from the treaty nation, not specifically you, but double check this), explain what role you will be taking at the co (eg. CEO, but not limited to this) and then prove why you’re qualified to take this role and why no other regular American can, and then — if you do all that — you should be able to get an E-2 visa granted to execute this role, in the US! You definitely don’t need to have already created jobs (although having Americans contractors is great) or created revenue or turned a profit, but showing strong potential and intent to do so is paramount.

That’s the E-2 visa, in a nutshell.

Once you have completed these steps, assemble all the information and evidence that demonstrate the completion of said steps, and submit this information in the form of the “E-2 Visa Application”, you’ll have your E-2 Visa interview scheduled at the Consulate you are applying at. In terms of which Consulate to choose, it has to be an “obvious” choice ie. closest to the city that your family lives in or have strong ties to, otherwise my lawyer noted that the they could reject you on the grounds of “visa shopping”.

It took about 2.5–3 weeks from submitting until my interview took place. Before you get your interview, you may get an RFE (“Request For Evidence”) from the consulate, where they specifically ask you to bring more info to the interview. Otherwise, you rock up with a printed out copy of everything your lawyer (in my case, electronically, over email) submitted. You do your fingerprints, wait for your interview, and then at the interview either: get the visa, don’t get the visa, get a SOA (security clearance issue), or get a request for more evidence to make a decision, which could add an extra month of processing time. If you get the visa, the Consulate takes your passport to process and issue the visa and you should have the stamped passport back in 1–2 weeks. As I type this, I’m currently waiting for my passport to arrive in the mail en route so I can head back to the Bay Area.

The other option, if you’re already in the US on a different visa such as the F-1 visa, is to stay in the country and submit a “change of status” where you can switch from your existing visa to the new one. This is a more time consuming process though — it can take months, but you have the option to pay something like ~1.25k USD (I don’t know the exact amount) to get premium processing and speed it up to a couple weeks. Though I’ve heard under premium processing there is much more scrutiny applied to your case.

Quick note: The E-2 visa is antiquated. It’s designed more for brick and mortar businesses, traditional business models, versus the Silicon Valley typical startup blitzscaling-VC-funded-sacrificing-revenue-for-growth business model. This is not to say it’s not at all possible to get E-2 visas for startups; it is totally possible. (My business wasn’t at all a typical Silicon Valley startup type model in that convention, but my lawyer mentioned they had gotten a number of tech startup types gotten approved before.) You’ll need to do things a little more traditionally and less scrappy in some senses and do some things for the sake of your visa — business plan, five year financial projections, having a physical office space lease even at the start — but you won’t necessarily be super tied down to these for the course of your visa.

What Do I Invest?

Tangible assets.

Cash is your best bet. I’m sure if you’re starting a firm and you own some other relevant assets such as equipment, you could assign ownership to your business, but best to check this with a lawyer.

You can invest IP! But, any old IP, such as the mobile app you’ve built, is intangible until rendered tangible. How can you assign a value to IP? Perhaps you have a contract where some entity wants to buy it for you for $X; you’ll want to attach this contract to, and highlight it. You can also hire agencies like an independent consulting company to value it for you. I had a good amount of IP that I could have contributed but didn’t want to go through the process of valuing it. See this article where one founder successfully did this, though, where the founder talks about how his visa included an IP investment.

My suggestion is that an IP investment should, of course, work, but it should not be a substitute for other cash expenditures, or it might make the visa officers weary. Again, it’s discretionary.

When you invest cash, you’re expected to spend a decent proportion of that cash. A lot of people try to just stick money into a bank account. This is a common reason E-2 visas are rejected. If your investment amount is on the lower end, you’ll want to make sure most of that amount is invested. Why? Because the E-2 visa requires that the money invested has been placed at risk. Sticking money into a bank account isn’t placing it at risk. Spending the capital to purchase equipment, software, pay contractors, get an office space, legal fees, running a marketing campaign, organize business trips and/or meetings, etc. — this is placing it at risk. Technically, your total investment amount need not be the total amount that has been spent (can also include cash in the account that’s left to be spent), but you’ll want to make sure you’ve spent a good amount. In my case, I had spent the vast majority of my total investment amount, and any unspent amount I had listed as future expenditure.

You might also have contracts or purchase orders that are contingent on getting the visa, eg. placed in an escrow. I’ve seen that this works too, but I’m not too familiar with it.

Also, a popular option for a lot of E-2 visa holders is to purchase existing businesses, but it’s probably not relevant to most readers of this article.

How Long Is The Visa?

It actually depends on the treaty country in question, and it can almost be at the discretion of the officer sometimes (eg. we’re not sure about your business, we’ll give 1 year for now to prove us wrong and if you do, we’ll give you more time).

The maximum initial period is 5 years. Some countries have a very short period, some have in the middle, some have the full five. My visa is initially good for 4 years. Remember: a visa does not mean how long you can stay, it means how long you can enter for. Once the 4 years are up, you have 2 years of stay left. So technically I can be in the US for up to 6 years for the initial period, the maximum for the visa being 7 years, and the minimum being 2–3 years.

After the initial period, there are extensions. You can extend for 2 years at a time. Renewals are indefinite but on an approval basis: you should show you are hitting your projections and, if not, are on the path to do so. Essentially, you have to show you are genuinely growing a business and are creating or are going to create US jobs. By the end of your initial period, you should have at least created a few jobs. Otherwise the visa officers may exercise their discretion to reject extensions. If, in 5 years time, you’ve hired 0 Americans, it’ll be a tough sell to get a renewal. Though again, this will all depend on your specific case and you should talk to your lawyer about it.

Obviously, there is no direct path to green card given that it is not a dual intent visa. But 7 years of stay is plenty amount of time to consider switching to a different dual intent visa, say O-1 or H-1B, for example — and avoid worries about whether your E-2 extensions will be granted. (Remember… the goal is always more freedom! Ha!) Maybe you decide you actually want to be independent versus hiring people — in this case the E-2 isn’t technically designed for you, but you could use it as buffer time — be careful here, though, you don’t want to be accused of anything like visa fraud, and also a routine reminder that this is not legal advice.

If your business fails, your visa is revoked.

How Much Do I Have To Invest?

This is where online information starts to become misleading.

On the internet, you’ll see a minimum $100k USD figure, at least $100k-150k is what a lot of websites seem to prescribe.

This is wrong! There is no minimum! My application was <$100k USD, and many of my lawyer’s applicants had <$100k USD investments! (As low as $30k USD had been approved in their case. $60k USD was approved for another case.)

The amount you should invest is specific to the business/type of business. For consulting businesses, it seems that $70,000 is a good minimum to hit to feel “comfortable” about your chances, though it’s certainly not a hard and fast minimum. (My lawyer said they had gotten an approval for an app development company from South America for around $40k USD.) The issue with lower investment amounts is that the outcome becomes more unpredictable; and you really don’t want that when you’ve put $70,000 worth of assets on the line.

It can also be very consulate dependent. Since this visa is discretionary, it will depend on the discretion of the officers at the consulate at the time of your visa evaluation. Different consulates seem to have different standards. I was told by a lawyer I respect that the Consulate for the country I was applying to, for example, generally want to see at least around $70k USD of investment on the lower end — but I can’t speak to how true this actually is. The officers do rotate every year, so I can imagine the strictness will also depend on the batch of officers or specific officer you get.

If your investment is on the lower amount, you’ll want to make sure most of the cash has been spent, and that your business is real and operating and up and running comfortably with the amount of cash that has been put in. My guess is the closer you reach $100k USD, the “safer” you are — less probing, less scrutiny, less doubt or uncertainty. But obviously visas have been approved for less than half of that amount; though again I think it’s important to note that pretty much all cash should be spent if you’re dealing with the lower end.

I think, if you’re going to apply for an E-2, you want to make your case as strong as possible. For me, I waited for months and months and months before really pushing my application to the finishing line, waiting for my investment amount to increase and increase as I brought in more revenue and cash, and until I had 3 ongoing contracts under the company’s belt. For most people the E-2 takes a couple months to prepare, for me it took ~8 months! A lot of people were pressuring me to just “submit it already”, but I’m glad I waited until my application was beefier and beefier, so that I could maximize my chances.

Ultimately, you need to invest a substantial amount and put it at risk such that it renders the company real and operating. Thus, the investment amount will differ for each business. A consulting business has less start-up costs than, say, a restaurant. You’re going to need to prove that the amount you’ve invested is sufficient to ensure the long-term success of the business, and will enable the success of the financial projections that you provide in your application. You’ll need to work with a lawyer to demonstrate this and figure out, in your industry/field, what the numbers are normally that the visa officers like to see, and whether that number range makes sense for your specific case.

If your investment is pretty low, but you’re already generating revenue and maybe even hired someone, that’s a good sign.

Again, talk to a lawyer to figure out the potential for your specific case. But don’t be dissuaded or too encouraged by one lawyer; each lawyer has a different take. Talk to multiple IMO.

Where Can The Investment Come From?

Multiple different sources.

Business revenue that was invested back into the company and used for expenditures (this was the majority of my business’ investment)

Personal savings

Unsecured loans: you can take a loan, but it cannot be secured by any business assets!

loans: you can take a loan, but it cannot be secured by any business assets! Loans secured by personal assets are OK, as far as I’m concerned

Gifts (eg. from family, family / friends)

Inheritance

External investments

Regarding external investments, I’m not 100% sure about the following information, but:

Only if the external investment is <50% of the total investment, so the treaty nation has to contribute at least half of the investment

The other 50%, as far as I’m concerned, has to capital from the treaty nation

I have read that it can be capital from your treaty nation, so not necessarily you, but say another investor of nationality X if you are a national of country X

But my guess is that, eventually, you will need a decent amount invested that’s coming from you as the E-2 executive

is that, eventually, you will need a decent amount invested that’s coming as the E-2 executive I think the visa officer does want to see the E-2 executive applicant placing something at risk to the business, but again, I do not know for sure here

I’m not exactly sure what the exact logistics are here, definitely worth consulting a lawyer if this looks like it could be an option for you

How Can I Acquire These Funds?

Good question. For me, the vast majority of my funds were drawn from personal savings and business revenue. I did a lot of contract work in high school + middle school and saved up that money plus other gifts that I wired directly to my business bank account. There were also charges that were related to my business (eg. servers, marketing stuff, design contracts, etc.) outgoing from my personal bank account before the business started because I had assigned over some IP I personally owned into the business, such that the business now owned this IP, and these charges were related to the development of that IP. This was a small fraction of my total investment, though. There were also obviously setup charges like incorporating the company, setting up a bank account, getting a tax number, initial legal work, etc. The largest part of the investment, however, was just money coming into the account and exiting the account for business expenses (will explain what those expenses are in the next section).

I also was doing contracts under the business since I started it, mostly small stuff I was finding that I was pulling in and saving up for the business during my school holidays. For one contract my business was paid and then subcontracted the work out to other contractors, so I wasn’t doing actual productive work for direct cash, since I was at Stanford as a student on an F-1 visa. I also built a lot of IP (not for direct cash payment, but my own products basically, just by myself and with other people), especially during my school holidays.

I was then lucky to land a work contract that was pulling in ~$30k USD in revenue per month from the start of July; I moved back to my home country for the summer to live with family and save up all that cash so I could invest it all back into the business. (My goal was to find a contract to do just this, and I got lucky!) By the end of August, when I submitted my application, I had brought in a good amount of revenue that really beefed up my application. My application really came together this summer, and I felt this was the time to go ahead and file my application.

Some options and ideas that I can think of, could be a combination of these things and if you’re super determined I think it’s very doable:

Perhaps raise seed from an angel investor (especially best if from your treaty nation, but obviously b/c of 50% rule this is not necessary for 50% of the funds, though again I’m not too sure about this so double check it with a lawyer)

While you’re outside the USA, make money doing work, or save up $$$ from internships in the US

Get into a saving mentality, generally, do on-campus jobs during school, save up as much $$$ as possible

If you’re from a wealthy family and not on tuition you could take an unsecured loan from your family + friends as part of the funds (or raise), perhaps propose it to your family as an alternative to finishing school, or plan to finish school a year early and see if you can tap into that otherwise final year of tuition

Start generating revenue already by doing contract work that falls under the premise of the business, eg. for a startup, maybe you can provide consulting/do technical services through the business (I’m not sure if you even need to frame it as a consulting business for the visa to do this per se)

Note: you don’t want to be making this money personally, you want the business to be making it, don’t pay yourself anything before you get the visa! Especially if you’re already in the US on a different visa!

What Do I Spend The Money On?

It’s going to depend on the business. For a restaurant or anything brick and mortar, it’s pretty clear cut. For a technology business, it’s more difficult. The cool part about startups is that you can keep things pretty scrappy at the start and avoid having to spend capital on things. Here are some examples of what a tech startup could spend money on over time:

Office space

Contractors/subcontractors

Payroll

Copywriters / business plan writer

Legal fees (including your E-2 lawyer fees!)

Server/compute & cloud storage

Software & applications

Services & subscriptions

Marketing campaigns

Equipment eg. computers, monitors, office materials, etc.

Meetings, business travel

Incorporation

Tax

Don’t just go throwing money at stuff to spend it and fulfill the investment amount, even if it’s money you’ve generated yourself in revenue or your own personal savings! You should definitely prioritize the business, not the visa: if this means taking a year or two to make the investment over time as appropriate, then do this!

The E-2 Catch 22

Ok, so how do you incorporate, invest in, run, direct, etc. a US business… without being in the US? Even worse, how do you do this while already in the US on a non work visa!?

The E-2 isa bit of a catch 22, in this way.

If you’re from a treaty nation and not yet in the US on a work visa, you might be able to come into the US on an ESTA or a business visa. The business setup and investments are allowable on ESTA & business visas. Also, having an American co-founder definitely works well in this scenario; this can help with logistical stuff.

Also, anybody can legally incorporate a US company, from anywhere. Just set one up in Delaware! And then get a foreign state qualification for where you anticipate to work / already do live.

A few things:

There is work you can legally do: non-productive work, eg. placing investments, directing activities on a high level, taking meetings, etc. — the kind of stuff that is allowed on a B type visa and technically should be allowed on something like an F visa There is work you can’t technically “legally” do (“productive work” like coding, accounting, etc.) on these non work visas, but the Consulates purposefully ignore or do not worry about/look into — I got this advice specifically from a lawyer I highly respect Building your own IP is probably safer than doing monetary contracts, while in the US. But, never take payment on your own behalf — rather on the business’ behalf.

The line between #1 and #2 is very blurry, anyways. I think visa officers can often recognize that the E-2 is a bit of a catch 22. So they’re not too worried about this. Again, this is advice directly from a lawyer I really respect.

What are the Consulates worried about? You not leaving the US once your visa. You not actually intending or genuinely able to create US jobs. Your investment not being substantial enough.

But they aren’t probing, for the most part, whether the setup of the business had some “out of status” work in the process. It is, again, a catch 22 anyways by nature.

My lawyer told me, before my interview, that they might ask “have you done any productive work in the US on your F-1 visa in setting up this business?” (They didn’t end up bringing this up at all.) Give a clear answer: no. I was also prepared to give evidence/reasoning: eg. no, that’s why I hired contractors to do the coding work instead of me. One more point my lawyer made: you are not under oath at your E-2 visa interview, unlike a green card or citizenship interview.

Just don’t do anything clearly irresponsible like taking cash payments directly for work you’ve done through the business. Don’t do anything too large-scale or “noticeable”, either (like a bunch of press). You should be fine.

You probably also don’t want to take investment while you are inside the United States. You definitely shouldn’t take on an American seed investor, or something, while on a student visa.

This is why, I think, if you have something you want to build and you’re in school — you can start building it slowly and in a scrappy fashion. Start making the investments and setting up the business over time, keeping it lowkey, perhaps the course of a year or two, and then once you’re ready to go ahead and apply for your E-2 visa, canceling your F-1 or whatever other visa you may have. This is definitely feasible to work towards (versus say, just magically conjuring up tens of thousands of dollars and dumping them into expenditures so you can get a work visa.)

What Else Do I Need?

A lot of things. For context, my application was, in total, approximately 750 pages long.

Proving marginality

You need to show that your business isn’t just going to support you and your dependents (family), but is going to actually generate jobs for Americans. A lawyer I highly respect told me that one of their clients had an application with a decent amount of investment, and already had a big contract signed and ready to go, but didn’t show strong enough intention that they were going to hire other Americans versus just pursue this business (non-technology by the way) by themselves completely. You will demonstrate this by submitting a comprehensive business plan along with five year financial projections, backed up by external sources. You’ll need to show how much revenue and profit you will be generating in the next 5 years, along with how many jobs you’ll be creating. This business plan should be comprehensive — 20–40 pages.

You probably shouldn’t write this business plan, or the financial projections, yourself! Unless you’re genuinely talented and knowledgeable in this stuff. Me? I wasn’t: I know how to code, design, but I don’t really know how to write a rock solid business plan with financial projections.

I paid about $1k for a really great business plan done by a small consulting firm called Inceptum Consulting, with unlimited edit requests. Would highly recommend to anyone.

Don’t treat the projections as a contract! Treat them more as a demonstration that you’ve done your thinking about how your business can make money, and show that to the visa officers. I know startups, especially at such an early stage, don’t really think about financials in the same way a brick and mortar store might. But remember, you’ll need to do some things for the sake of the visa. These visa officers don’t get the whole funding-as-a-short/mid-term-replacement for/bridge towards-revenue/profit-or-exit model that Silicon Valley adopts. You may not even really know how many people you’ll have hired in 5 years time. That’s fine, make an educated estimate — and probably lean on the more conservative side versus liberal side to accommodate for the checkups and extension requests for the visa.

If you’re already generating profit and on track in your projections, you can definitely use this to demonstrate marginality. Though, again, this is not necessary.

Proving “Real and operating”

You’re going to need to demonstrate that the company is real and operating. How can you show this? Here are some examples:

Incorporation documents

Contracts with clients

Write-ups on or images of IP

Analytics, metrics, etc.

Marketing materia

Printout of website

Letters of intent from potential clients, partners, or buyers etc.

Tax reports/filings — this is important… pay your taxes!

Invoices to clients

Bank statements showing activity

Profit & loss statement

Trademarks or patents

Licenses

Office lease

Note that you don’t need to already be generating profit, nor even revenue. You technically don’t even really need clients or customers or contracts. (Though, again, it’s all going to be dependent on the type of business and what your business plan outlines.) You just need to show that the business is already up and running and is ready to go full steam ahead when you get your visa. I do think it’s good to show, esp. if your investment is lower, that you already do have contracts/clients lined up, IP built, or tangible things happening, before you apply for your visa. If you do, though, your case will obviously be a lot stronger.

The E-2 isn’t really, by nature, technology or startup friendly. It’s more designed for traditional brick and mortar businesses like restaurants, retail shops, etc. My lawyer told me that the officers are becoming more and more knowledgeable and comfortable with technology and Internet/non-physical businesses, but you’ll want to make sure your application is really comprehensive to avoid any potential misunderstandings or unwarranted criticisms from the reviewer.

Office space

You absolutely need an office space. Technically, according to my lawyer, the visa necessitates that you have an office space large enough, by the time you apply for the visa, to fit all of the people that you intend to hire in the 5 year projections. However, it seems that this rule isn’t really strongly enforced.

Personally, I didn’t need and wasn’t looking for an office space. My intention once I move back is to cancel the WeWork and move into a home office; this is what most super super super early stage organizations do! It works best, especially in technology, since you can really work from anywhere. Again, the E-2 visa is antiquated and designed for traditional businesses, and this requirement can be a frustrating artifact of that.

WeWork is a good option here… even though the company is a total mess! It lets you rent out desks and small office spaces, and I actually used mine a decent amount — was working on projects alongside a friend from Stanford taking time off to build his startup in SF — even though I treated it more as a holding for my visa. It is expensive, especially the ones in SF, unsurprisingly. But you can expand and scale down the size of the office as needed, and rent can be on a super short-term basis — as short as 1 month at a time.

Some lawyers said it’s best to show a year long lease, but for me I didn’t feel at all that made sense because I wasn’t committed to having a WeWork space post getting the visa. I had a WeWork office for about 8 months at the point of submitting my application, and I extended to a 3 month lease just in case the visa officers might take issue with a 1 month lease.

It seems some visa officers can be fairly skeptical of WeWork and co-working spaces in general, but there are multiple ways you could explain/justify it, such as:

In the type of business I’m in, there’s limited overhead

There’s a lot of remote work

Don’t need fixed office space

WeWork is expandable

WeWork is big in the tech community / my industry

Another thing: we get the best and brightest people by having flexible workspaces and allowing people to work remotely

My lawyer also told me to bring a printout of WeWork’s website showing that the offices can be expanded easily. I did this.

You’ll want to keep all your lease agreements and show it in the application.

Proving the investment

You need to prove your investment! Keep track of all your invoices and receipts. You’ll want your invoices to show your name or your business’ name.

You need to make sure your bookkeeping is good. You’ll want to balance your accounts (have a balance sheet), keep track of all expenses with invoices & receipts, and point each invoice/receipt to the matching debit in the bank statement. Hire an accountant or DIY — I DIY’d and in two full days of work was able to link every single invoice/receipt in my records to the corresponding part of each of my company’s/personal bank statement (in a spreadsheet). Yes — you should prepare for being able to account for every single dollar. This is why it really is always easiest when you make the business expenses from the business bank account, versus from your personal account.

Not all Consulates bother enforcing this rule, it seems, the Consulate I was applying at apparently being one of them for the most part, but — for example — my lawyer noted to me that they had a client apply from Turkey and the Consulate sent an RFE (request for evidence) asking for every single dollar to be accounted for.

I made sure to diligently store and organize and keep track of every single receipt/invoice relevant to my invoice. It made life a lot easier, though I wish I had started balancing my account earlier. You should make sure you do this from the start. Just get a Dropbox and a spreadsheet and start organizing!

Proving Source of Funds

You need to prove the source of your funds, essentially showing a money trail. This is just to show the Consulate that the money came from legal activities. The information I found online makes it seem like you need to show a deep money trial — eg. if you took on a loan or investment from someone or were paid by someone, you need to prove that their money is clean. My lawyer told me this is unnecessary, and in most scenarios with the visa application “less is more”; keep the application straight to the point (it’s already going to be very bulky!), otherwise you don’t want to confuse the officers or detract from the things that deserve more attention, and have extra scrutiny applied to said things and extra unnecessary questions etc.

So for me, I just went one layer deep. For personal savings, I showed money outgoing from my personal bank account and incoming into the business bank account. For business revenue, I showed invoices to clients and matching credits in my business bank account statements.

Obviously, if you received a loan, a gift, or investment etc. you’ll want to show documentation of this (eg. a loan agreement, term sheet, etc.)

Application forms

This part is pretty simple, you just need to fill out the basic application stuff like the DS-160 form, receipts for the visa fees, the investor DS-156E form (your lawyer will do this), G-28 form if you have a lawyer, etc.

Personal documents

You’ll also need some personal documents — passport info, US travel history, your resume/CV (so you can demonstrate that you are qualified for the position you’re going to take up), a signed letter of intent to leave the US once your visa is done, proof that you have ties in your home country outside the US (eg. for me a bank account, drivers license, etc. showing my home address in the home country and city I was applying from).

Company docs

The most important thing to show here is you/treaty nationals own 50%+ ownership of the company, and you need to prove it. It’s usually as simple as showing the incorporation documents, post-incorporation type documents, cap table, etc. Basically just gotta chuck all your company incorporation forms, foreign qualification stuff, tax number issuance forms, stock purchase agreement, and bylaws etc. here.

What Does The Application Actually Look Like?

This is something I couldn’t find online that I wish I had found!

I don’t know if there is a universal format to the application. I can only speak to what my lawyer submitted. My visa was emailed to the Consulate in 7 separate documents (PDFs). Each PDF corresponded to a “Tab”. There are 7 Tabs for the E-2 visa, they follow:

Tab A: Table of contents and Cover Letter

Tab B: Forms

Tab C: Applicant Information

Tab D: Ownership Documents

Tab E: E-2 Investment

Tab F: Real and Operating Commercial Enterprise

Tab G: Marginality

What goes in these sections are pretty much all covered in the “What Else Do I Need?” section I wrote above.

How Strict Are They? How Do They Evaluate It?

The E-2 visa is very discretionary based. Some Consulates are known to be stricter than others. Some officers will be stricter than others. Some officers will understand the startup thing, especially younger ones, and others will not get it as much (thus the need to lay things out clearly). You should ask your lawyer about their experience with the Consulate you will be applying from. My Consulate, in a Western country that has historically had very good relations with the US, is known to be pretty lax in terms of interviewing and evaluation process, according to my lawyer, as long as the investment numbers aren’t low.

The E-2 visa officers are low level immigration officers. They aren’t business experts. This is why you need to spell everything out for them in your application. Especially for Silicon Valley startups, it’s important to educate + convince them via a compelling application with a traditional type business plan. A good five year business plan and financial projections is paramount. Remember, these officers have an insane level of discretion.

They are evaluating to see — does the applicant not have immigrant intent, will the business create US jobs, does the application have the qualifications to occupy the position they are intending to occupy, can it not be occupied by any ol’ American, is the company real and operating, has there been substantial investment put at risk, etc.

Sometimes the officer doesn’t see your application until right before. Sometimes the officer read it further in advance. It’s not clear and probably Consulate specific.

What Was The Interview Like?

Good question. Each interview varies. Mine was super simple — the only questions I was asked was “so you’ve been to the US before on an F visa?”, “how much has been invested?” and “what are your plans after your visa is complete?”. The officer hadn’t even seen my application! He was surprised when I told him that my lawyer submitted all the documentation weeks ago to the Consulate. He went away for a few minutes, came back, spent a few minutes looking at his computer and then told me my visa had been approved. It was super strange, since I spent hours preparing for a range of different possible questions. I’m not sure exactly what was going on, but I assume my visa had already been approved behind the scenes and the officer was just an extra step / a front. Who knows.

I think it would be harder to challenge my intentions and my businesses’ potential since I was already generating consistent revenue each month, had solid IP already built and multiple contracts ongoing, had a decent sized investment, and had very clear projections with a strong business plan.

My notes with my lawyer followed when asking them for advice on the interview:

They may ask about the business; what is it, and why do you want to go the US to direct it? You can actually direct the line of questioning, normally, but keep it focused on the business and the business plan and the projections. Focus on the numbers and job generation. Emphasize ongoing contracts and such, ongoing revenue, proving that it’s already real and operating. Print out all documents, and any updated bank statements. In terms of what to wear — keep it business casual, or what you otherwise would wear to a business meeting in your industry. Don’t overdress. The interview can be up to 30 minutes, but can often be shorter than that, depending on the Consulate and the officer. Assume that the officer may not have even looked at your application, and really review everything that was submitted.

What If I Get It?

Congrats!!!

Other Qs, Other As

Q: What if I’m rejected?

A: I’m not too sure, but I do think you can submit an appeal to the Administrative Appeals Office. Otherwise, they will tell you why you are rejected and you could probably re-apply with the feedback applied. For example, perhaps the investment was not substantial enough; you could wait a number of months and try to increase the investment amount, and then go back and re-apply. Double check this with a lawyer, though.

Q: Can I get a visa for my dependent?

A: Yes!

Q: Can I get a visa for other employees or executives?

A: “E-2 visas are also available to employees/managers of the business, provided they share the same nationality as the investor and are considered an executive or essential employee who possess specialized skills related to the business’ operation” (https://medium.com/octopus-ventures/coming-to-america-5cf461a2cdb8)

Q: Can I change my business location?

A: I’m not 100% sure about this, but my lawyer told me the business can’t just switch locations without there being a visa validity issue. I think the visa is tied to the location. But maybe there’s a process to change it?

Q: Where can I go from the E-2?

A: Good question. It’s not dual intent, so not direct to green card. Some thoughts: you could keep renewing it, or: could switch status to other immigrant visas: O-1, H, etc. E-2 -> O-1 -> EB-1A is the ideal path for me. Can switch status while in the country (slower), or leave the country + do interview (faster). E-2 gives buffer time to build a more compelling case for the O-1.

Q: What if 50% stake in the company is lost by treaty nationals?

A: Visa becomes revoked, am fairly sure, but double check this.

Q: What if my E-2 company has a subsidiary?

A: You can direct/work for that subsidiary under the same E-2

Q: Can I be enrolled in school on my E-2 visa?

A: Technically, probably not for full-time study (eg. enrolled at Stanford as an undergraduate). Since you need to primarily be running the business on your visa. There’s no hard and fast rule saying you can’t pursue a degree while on an E-2 visa. And Stanford does not disallow it (when I asked them about it they didn’t have any objections.) But you need to be fulfilling your business obligations! Not sure how the govt would find about it, as well. I wonder if you could take a quarter here and there to extend the amount of time you can take off without getting dropped from registrar. You can definitely pursue incidental/part-time courses & programs, though! Like online, night classes, one off courses, etc. One note, though, is Stanford does not provide any international services to non F/J visa holders. My guess is that it’s probably fine to complete your undergrad degree while on your E visa, but be weary of this advice.

Q: Am I tied down to this company? Can I pivot?

A: As long as you’re on this E-2 visa, you’re tied down to this company. You can’t easily perform a major pivot, though ask a lawyer for specifics. I’m sure you could perform a minor pivot of sorts, would definitely need to be in the same field. I think you have to communicate with the government (Consulate) about it first, though, and get approval.

Q: What if my company goes bust?

A: You lose your visa.

Q: What if I want more flexibility?

A: This is what I wanted. If you are smart, you can get it. If you don’t yet know exactly what you want to build long-term, or you just want the flexibility to build different things, the E-2 can still definitely be right for you. I knew what I wanted to build, and what I wanted to build — a technology studio co-operative — was by nature a flexible business that aimed to work on different projects of different types. Perhaps you just don’t know yet what specifically you want to create and you want to leave the option open for multiple projects. In this case, it might be wise to get a visa for a technology studio / consulting type business. This way it’s in your business model to build different projects, with different clients, having a multi-pronged business model (and spelling this out in your application) where you could make money doing contracts, or creating your own IP, selling your own services, investing in other startups, etc. etc. I think this could be a good strategy, it certainly would have worked well for me if this was my intention.

Q: Do the expenses have to be after the business was created, outgoing from the business account?

A: No, but I would say most of them should be. It’s a lot cleaner that way. You want everything to be nice and easy and clear for the visa officers. Probably 10% of my investment was from my personal bank account though, and I showed all investments and attached all my personal bank statements.

Q: How do I get an EIN?

A: You need an EIN to open a business bank account in the US. It’s hard to get an EIN while not in the US or on, like, an F-1 visa, since you need an SSN or ITIN first. I think you can apply for an ITIN alternatively, and through Stanford this takes like 8 weeks (which is a while!) You could alternatively get an on campus job and get an SSN. Or, do what I did, and you can get a third party lawyer to file an EIN for you. I don’t know exactly how it works or what it means, but Mollaei Law did this for me for a few hundred dollars in the span of a week and it worked out great.

Q: I have a different question!

A: Email thestanfordguide@gmail.com and your question will be forwarded to the original author of this article.

Thanks for reading!

RK