Disclaimer: The following is written to provide a very general basic outline of the visa or immigrant process described below. It is meant to be general in nature and outlines simply some aspects of a very detailed process. Do Not Rely on the information which follows for instructions, nor as constituting legal advice.
As a foreign professional seeking permission to work in the United States, several visa pathways are available depending on your nationality. The TN visa is exclusive to Canadian and Mexican citizens, while the E3 visa is tailored for Australian professionals.
For citizens of other countries, the H1-B visa is often the primary option. However it is subject to an annual cap, which can pose a significant challenge. Notably all these visas require employer sponsorship, and only spouses of E-3 visa holders are eligible to work in the US. Given these limitations entrepreneurial professionals can explore the possibility of using the E-2 investment visa to establish a consulting or professional services business in the United States. Citizens of E-2 treaty countries are eligible to start such enterprises under the E-2 visa, provided they meet all investment related criteria. That said, applicants must address additional requirements and considerations to ensure full compliance with the E-2 visa regulations. Developing a strong business plan and aligning with the nuanced and complex immigration guidelines to professional services, are essential to motivate such a business for a prospective E-2 applicant.
Some of the key requirements for starting a Consulting Business Under an E-2 Visa are as follows:
1. Substantial Investment
You would be required to make a “substantial investment” in the U.S. business. While there is no fixed minimum amount, the rule of thumb is usually $100,000 or more, in a consulting business. However, you could likely invest slightly less than this amount if your business plan can justify that the nature of the business does not require excessive start-up costs for the business. A consulting businesses start-up costs would include costs such as office space, professional certifications, marketing, and technology infrastructure. All of this would be required to demonstrate your “substantial investment”.
2. Available to be present to manage the business enterprise
As a professional business owner / manager, you would be required to motivate that you are capable of actively managing and directing the business rather than simply being self-employed. Here you would need to demonstrate that you would be overseeing operations, acquiring clients, and developing strategies for growth. A consulting business must show that it is more than marginal by contributing to the U.S. economy (e.g., through job creation or supporting and employing other independent contractors in the field).
3. Well researched professional business plan
A comprehensive business plan is essential to outline how the business will operate, grow, and generate revenue. It should include five-year revenue/financial projections, market analysis, and must elaborate on hiring plans to demonstrate long-term viability and economic impact.
4. Job Creation / Marginality
While consulting businesses often have lower overhead costs, they must plan to hire U.S. workers or collaborate with independent contractors to fulfill the job creation requirement. This is an essential element of an E-2 visa. You need not employ a lot of contractors, and you can show some of the employees will be employed in an administrative capacity. You should explain that you will be hiring some employees within the first year of operating.
5. Physical Presence
Establishing a physical office space can strengthen the application by showcasing a commitment to operating in the U.S., though virtual operations may also be acceptable with proper justification, particularly in the case of a consulting business. You need not spend a lot of funds on a physical office space, but a business address / presence is important to establish the business credibility for the petition.
6. Professional qualifications and resume showing specialized knowledge /experience
Consulting businesses usually rely on the applicant’s specialized knowledge or expertise, which should be highlighted as a unique value proposition in the business plan and resume, as well as including copies of qualifications and re-certifications and certificates of good standing from the overseeing professional body aligned with the profession concerned. The application should include professional credential documentation which would be essential to demonstrate authorization to work in the USA, unless the business would be geared at exclusively hiring out other independent contractors’ services.
Therefore, a professional E-2 treaty country citizen can indeed start a consulting business under an E-2 visa if they meet the visa’s requirements. The petition must be structured to establish substantial investment, active management on the part of the E-2 entrepreneur applicant, demonstrate that the enterprise is more than marginal, and long-term viability.
