The E-2 Treaty Investor Visa
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Learning About The E-2 Treaty Investor Visa
Some people call the E-2 the next best thing to U.S. permanent residence, because it is possible to obtain via self-employment, and it comes with an unlimited number of extensions. Also, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.
The E-2 nonimmigrant classification 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.
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Key Features of the E-2 Visa
- The treaty investor can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the visa holder or other citizens of the country of origin, so long as this country has a trade treaty with the U.S.
- The treaty investor may travel in and out of the U.S. or remain here continuously until the visa and status expire.
- The treaty investor is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.
- The initial E-2 visa may last up to five years, with unlimited possible five-year extensions.
- Each time the treaty investor enters the U.S., he or she will be admitted for two years.
- Visas are available for an accompanying spouse and minor, unmarried children. However, the children cannot work in the U.S.
- A spouse will be permitted to accept employment in the U.S.
Qualification Criteria for an E-2 Treaty Investor Visa
There are six requirements for getting an E-2 visa:
- The applicant must be a citizen of a country that has an investor treaty with the United States.
- The applicant must be coming to work in the U.S. for a company that he or she either owns or that is at a minimum 50 owned by other nationals of the country of origin.
- The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.
- The applicant or the company must have made a substantial investment in the U.S. business (there’s no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business).
- The U.S. company must be a bona fide, active, for-profit business, not a mere “marginal” profit-producer. It must be actively engaged in trade or the rendering of services and meet the applicable legal requirements for doing business in its state or region.
- The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.
Qualifications of the Employee of a E-2 Treaty Investor Visa
Qualifications of the E-2 Treaty Visa Continued
If the principal alien employer is not an individual, it must be an
enterprise or organization 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. If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors. Duties which are of an 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.
- Knowledge of a foreign language and culture does not, by itself, meet this requirement.
Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.
Terms and Conditions of E-2 Status
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:
- Relationship between the organizations is established
- Subsidiary employment requires executive, supervisory, or essential
- Terms and conditions of employment have not otherwise changed.
USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.
The treaty investor or enterprise must notify USCIS by filing a new petition and requesting an extension of stay with the new terms included. It is not required to notify USCIS about non-substantive changes.
A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status.
Family of E-2 Treaty Investors and Employees
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 employee.
If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-2 spouse may work.
As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.
To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.
Related E-1 Visa Topics
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Frequently Asked Questions
Ready to invest in your American dream and explore the opportunities offered by the E-2 Treaty Investor Visa? Our FAQ section provides answers to your most pressing questions about eligibility, investment requirements, and more. With our expert guidance, you can navigate the complexities of this investor visa program.
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.
Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.
In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.
E-2 Visa holders are typically allowed to work in the U.S. only for the specific business they have invested in. However, their spouse may also be eligible to work through a spouse’s work permit.
The initial E-2 Visa period can vary but is usually for up to 2 years. It can be extended as long as the business remains operational and meets the visa requirements. There is no set limit to the number of extensions.