E-2
Investor
E-2
Investor
E-2 VISA
Treaty investors
The E-2 VISA nonimmigrant classification allows a national of 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. company. Certain employees of that person or an eligible organization may also qualify for this classification. (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.) See the updated list of countries with which the United States maintains a commerce and navigation treaty at U.S. Department of State’s Treaty Countries.
How to obtain E-2 visa classification if you are outside the United States
You cannot apply for E-2 classification on Form I-129 if the person you are applying for is physically located outside the United States. Interested parties should consult the US Departament of State website for more information about applying for an E-2 nonimmigrant visa abroad. Once the visa is issued, the person may apply to a DHS immigration officer at a port of entry to the United States for admission as an E-2 nonimmigrant.
How to obtain E-1 visa classification if you are outside the United States
You cannot apply for E-1 classification on Form I-129 if the person you are applying for is physically located outside the United States. Interested parties should consult the United States Department of State website for more information about applying for an E-1 nonimmigrant visa abroad. Once the visa is issued, the person can request an official of DHS immigration at a port of entry to the United States your admission as an E-1 nonimmigrant.
General requirements
Of a treaty investor
To qualify for the E-2 visa classification, 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 company in the United States
- Trying to enter the United States solely to develop and run the investment company. This is established by demonstrating at least 50% ownership of the company or possession of operational control through a management position or other corporate device.
An investment is the putting at risk of capital by the treaty investor, including funds and/or other assets, 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 demonstrate that the funds have not been obtained, directly or indirectly, from criminal activity.
A substantial amount of capital is:
- Substantial relative to the total cost of purchasing an established business or creating a new one.
- Sufficient to ensure the financial commitment of the treaty investor to the successful operation of the company.
- Of a magnitude that supports the likelihood that the treaty investor will successfully develop and operate the enterprise. The lower the cost of the company, the larger the investment must be, proportionally, to be considered substantial.
A bona fide company refers to a real, active and operating commercial or business enterprise that produces services or goods for profit. You must comply with applicable legal requirements to do business within your jurisdiction.
Marginal companies
The investment company cannot be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than sufficient income to provide a minimum livelihood to the treaty investor and his family. Depending on the facts, a new business may not be considered marginal even if it lacks the current ability to generate such revenue. However, in these cases, the company must have the ability to generate such income within five years from the date the treaty investor’s E-2 classification begins.
General employee
Requirements of a treaty investoro
To be eligible for the E-2 visa classification, an employee of a treaty investor must
- Have the same nationality as the main foreign employer (who must have the nationality of the treaty country)
- Meet the definition of “employee” under relevant legislation
- Be performing executive or supervisory functions or, if employed in a lesser capacity, have special qualifications.
If the primary foreign employer is not an individual, it must be a company or organization that is at least 50% owned by persons in the United States who are nationals of the treaty country. These owners must maintain treaty nonimmigrant investor status. If the owners are not located in the United States, they must be, if they apply for admission to this country, classifiable as nonimmigrant treaty investors.
Executive or supervisory roles are those that primarily provide the employee with ultimate control and responsibility for the overall functioning of the organization, or a major component thereof.
Special qualifications are skills that make the employee’s services essential to the effective operation of the company. There are several qualities or circumstances that could, depending on the facts, meet this requirement. These include, among others, the following
- A demonstrated degree of experience in the employee’s professional field
- The fact that other people possess the employee’s specific skills
- The salary required for special qualifications
- Whether the skills and qualifications are available in the United States.
Knowledge of a foreign language and culture alone does not meet this requirement. Please note that in some cases, a skill that is essential at one time may become commonplace, and therefore no longer qualified, at a later date.
Period of stay
Investors and employees who meet the requirements of the treaty will have a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit on the number of extensions that can be granted to a non-individual migrant E-2. However, all E-2 nonimmigrants must maintain the intention to leave the United States when their status expires or is terminated.
A nonimmigrant with an E-2 visa who travels abroad can generally obtain an automatic two-year period of readmission when she returns to the United States. Generally, it is not necessary to file a new Form I-129 with USCIS in this situation.
Conditions
E-2 Visa
A treaty investor or employee can only work in the activity for which they were approved at the time the classification was granted. However, an E-2 employee may also work for the parent company of the treaty organization or one of its subsidiaries as long as
- The relationship between the organizations is established.
- Employment in the subsidiary requires executive, supervisory or essential skills.
- The terms and conditions of employment have not otherwise changed.
USCIS must approve any substantive changes to the terms or conditions of E-2 VISA status. A “substantive change” is defined as a fundamental change in the basic characteristics of the employer, such as, but not limited to, a merger, acquisition or significant event that affects the treaty investor’s or employee’s previously approved relationship with the organization. The investor or treaty company must notify USCIS by submitting a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee. The Form I-129 must include evidence demonstrating that the treaty investor or affected employee continues to meet the requirements for E-2 classification.
It is not necessary to file a new Form I-129 to notify USCIS of non-substantive changes. However, an investor or treaty organization may seek advice from USCIS to determine whether a change is considered substantive. To request advice, the investor or treaty organization must submit Form I-129 with the rate and a complete description of the change.
A strike or other labor dispute involving a stoppage at the planned workplace may affect the ability of a Canadian or Mexican treaty investor or employee to obtain E-2 status.
Family of investors and employees with E-2 visa
Treaty investors and employees may be accompanied or followed by their spouses and unmarried children under 21 years of age. Their nationalities do not need to be the same as those of the treaty investor or employee. These family members can apply for E-2 nonimmigrant classification as dependents and, if approved, will generally be granted the same period of stay as the employee. If family members are already in the United States and are requesting a change of status or extension of stay in an E-2 dependent classification, they may apply by submitting a single Form I-539 with fees. Spouses of E-2 workers may apply for work authorization by submitting Form I-765 with fee. If approved, there is no specific restriction on where the E-2 spouse can work.
As discussed above, the E-2 investor or worker may travel abroad and will generally be granted an automatic two-year readmission period upon return to the United States. Unless family members accompany the investor or E-2 treaty employee at the time he or she requests readmission to the United States, the new readmission period will not apply to family members. To remain legally in the United States, members of the family should carefully note the period of stay they have been granted in E-2 status, and request an extension of stay before their own validity expires.
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We support your process of moving to the United States with the appropriate type of visa for your profile. (E1, E2, EB-2, F1, among others)
TAKE THE FIRST STEP
Don't postpone your dreams
We support your process of moving to the United States with the appropriate type of visa for your profile. (E1, E2, EB-2, F1, among others)
