E-2 Treaty Investors

The E-2 nonimmigrant visa allows a national of a treaty country (a country with which the United States maintains a treaty of Commerce and Navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

Certain employees of such person or of a qualifying organization may also be eligible for this classification.

For a list of countries with which the United States maintains a treaty of Commerce and Navigation currently, please use the link below:

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

When E-2 applicant is already in the United States:

Individual Application

If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may request a change of status to E-2 classification.

Employer's Application

If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file E-2 petition on employee's behalf.

When applicant is outside the United States:

Interested parties should refer to their local U.S. Embassy or Consulate for more information about applying for E-2 nonimmigrant visa abroad. Each Embassy/Consulate provides country specific requirements and application rules.

Upon issuance of E-2 visa abroad, the person may apply to a DHS officer at a U.S. port of entry for admission into the United States as an E-2 nonimmigrant.  Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years at a time. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the principal applicant.

Spouses of E-2 workers may apply for work authorization. If approved, there is no specific restriction as to where and how many hours the E-2 spouse may work. To qualify for E-2 visa status, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of Commerce and Navigation;
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States;
• Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

 An investment is the treaty investor's placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails.

The treaty investor must show that the funds have not been obtained, directly or indirectly, from any criminal activity.

A substantial amount of capital is:

• Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one;
• Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise;
• Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction. The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.

Important Note:

Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. However, in such cases, the enterprise should have the capacity to generate such income within five years from the beginning date of the treaty investor's E-2.  To qualify for E-2 classification, the employee of a treaty investor must:

• Be the same nationality of the principal alien employer (who must have the nationality of the treaty country);
• Meet the definition of "employee" under relevant law;
• Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, possesses special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization which is at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty investor status. Duties which are of executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization's overall operation, or a major component of it. Special qualifications are skills which make the employee's services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to:

• The degree of proven expertise in the employee's area of operations
• Whether others possess the employee's specific skills
• The salary that the special qualifications can command
• Whether the skills and qualifications are readily available in the United States.

E-2 Treaty Investors/Employee FAQs

https://www.immigrationlawadvisor.com/e1_and_e2_visa_faq.php#e_2

E-2 Treaty Investor Visa, Requirements of E-2 Visa