E-2 Treaty Investor Visa
What is an E-2 Visa?
The E-2 Nonimmigrant Visa classification applies to individuals wanting to enter the U.S. to develop and direct the operation of a commercial enterprise into which they have invested a substantial amount of capital. Key employees of the same nationality as the investor are also eligible for this classification.
Once the principal’s E-2 visa is approved, an E-2 Visa may also be granted to the applicant’s spouse and children under 21 years of age.
Requirements for the E-2 Visa
To qualify, the E-2 investor must:
- Be a national of a country with which the United States maintains an E-2 treaty (see list below)
- 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
To qualify, the E-2 investment must:
- Be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment
- Not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States
- Be “substantial”, which is defined by immigration authorities as: 1) substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one, 2) Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise, and 3) 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. Further information on substantiality is available here.
E-2 Visa Employees
An E-2 Visa applicant does not need to be an investor/owner, but can also be an employee of the business. The employee must be of the same Nationality of the investor or group that has majority ownership of the Business/enterprise. Qualifying E-2 employee roles can be as a manager, supervisor or a worker with ‘essential skills’ necessary for the business to operate.
To qualify as a supervisor employee, the worker must have responsibility for a large proportion of the enterprise’s operations or a major component of the business. The job cannot merely involve the supervision of low-level employees. The supervisory element of the employee’s position must be a principal and primary function, and not an incidental or collateral function.
To qualify as a ‘specialized skill’ employee, immigration officials will review the degree of proven expertise of the worker in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the company, the period of training needed to perform the job duties, and the salary the special expertise commands.
How Long is an E-2 Visa Valid?
E-2 visas are generally valid for five years. E-2 visa holders are admitted into the U.S. for a period of up to two years at a time. E-2 status can be extended in two-year increments indefinitely. An applicant may remain in E-2 Visa for an indefinite time, as long as the investment enterprise is ongoing.
Unlike the H1B visa, there is no annual Quota on the number of employees permitted. Also unlike the H-1B, L-1 and other petition-based work visas, the E-2 visa does not require USCIS pre-approval, but rather, can be submitted directly to the U.S. Embassy or Consulate of the Home Country of the applicant. As with other non-immigrant statuses in the U.S., E-2 can also be requested by an applicant already in the U.S., via a change of status request with USCIS.
If using Premium Processing filing, an E-2 change of status can be granted in a matter of weeks if applied for within the U.S. The Spouse of the E-2 Investor is eligible for an employment Authorization Card, (Work Permit) allowing the spouse the ability to work legally in the United States at any legal job in the U.S.which will accept them.
Which Countries are Eligible for an E-2 Visa?