Update on E2 Visa Requirements: Physical Office Space No Longer a Mandatory Requirement
As the world continues to adjust in response to the pandemic, many companies are operating on a partially or fully remote basis. Previously, operating without a dedicated office was not an option available for many entrepreneurial, business development, and investor visas. However, having an office is no longer a mandatory requirement for E visas, especially the E-2 visa. Although most immigration attorneys still recommend an office space, this change has paved the way for more leniency towards shared offices and coworking spaces.
In July 2020, the Department of State updated the Foreign Affairs Manual (FAM). The FAM is the guide used by Consular offices when evaluating E-2 applications. Prior to this update, a physical office was mandatory. Exceptions were only granted occasionally for businesses where an office would be irrelevant, such as a food truck business.
Per the update, the FAM now states, “an E-2 applicant does not necessarily need a physical office space to qualify for an E-2 visa. Although having physical office space may be relevant in determining whether the requirements for an E visa have been met, it is not a requirement to qualify for the visa.”
What does that mean exactly? If a physical office is a material requirement of a business in order for it to run successfully, it will still be required. However, if the business can reasonably operate without a dedicated office presence – meaning it can operate in a shared office, coworking space, or, in very rare occasions, with no office at all – it is no longer a mandatory requirement.
Operating without a fully dedicated office frees up working capital to be utilized elsewhere in the business. This allows more of the initial investment of the E-2 visa applicant to be used for other activities such as marketing, hiring additional employees, or other investments which can lead to quicker growth and development.
Further, the business landscape is expected to remain unstable for the foreseeable future as a result of COVID-19. Establishing or transitioning an existing business to a partially or fully remote model allows businesses to insulate themselves from future disruptions related to state and local closures and restrictions.
Implication on New Businesses
Despite this change, there are many instances where having a dedicated physical office is still recommended. This is especially true if an applicant is starting a brand-new business. The immigration case and business plan must successfully convince the Consular offices that the business is real. In the case of a new business, this is easier to prove if you will have a physical office.
However, this change does create options. If it can be demonstrated in other ways that the business is real and can successfully operate without an office, it is possible. Especially if the business plan can illustrate how the business will operate smoothly without a dedicated physical presence and show that the money forgone on an office space will be utilized in a way that will significantly benefit the business.
Implication on Existing Businesses
It is easier to be approved for an E-2 Visa without a physical office if it is an existing business. While there are cases when a physical office will be recommended, it is much easier to have a successful E-2 visa case without a dedicated office if the business is already in existence because the element of proving the business is real is removed. The company would also be able to demonstrate how it has been successful without a traditional office, reinforcing that the business can run successfully without it.
The decision to have a traditional office, a shared office, a coworking space, or no office at all should ultimately come down to the recommendation of an immigration attorney based on the unique business model and immigration strategy. Once that is determined, Joorney can create a professional, compelling business plan to increase the chance of immigration case success regardless which office arrangement is chosen.
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