E-2 Treaty Investor Visas
E-2 visas are reserved for nationals of foreign countries who seek to come to the United States temporarily when investing a substantial amount of capital in a U.S. business.
To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation (see link 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; and
- Be seeking to enter the United States solely to develop and direct the investment enterprise.
An “investment” is defined as the placing of capital, including funds and/or other assets at risk and subject to partial or total loss if the investment fails. In addition, the treaty investor must establish that the funds have not been obtained, either directly or indirectly, from criminal activity. Investment capital is considered “substantial” when it 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; and
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
Therefore, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
The enterprise must also be a “bona fide,” or a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. “Marginal” enterprises – those which do 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 – will not qualify for E-2 status. New enterprises, in and of themselves, are not automatically considered “marginal” just because they currently lack the capacity to generate such income. Applicants for E-2 visas in new enterprises must demonstrate that the required non-marginal income will be possible within five years from the date that the treaty investor’s E-2 classification begins.
To demonstrate the ability to develop and direct the investment enterprise, the foreign national must prove that he or she has at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
Employees of E-2 Treaty Investors
E-2 Treaty Investors may hire employees, and those employees may also be granted nonimmigrant employment visas. The employee must meet specific requirements:
- Be the same nationality of the principal alien employer (who must have the nationality of the treaty country);
- Meet the definition of “employee” under the relevant law; and
- Engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
If the employer is not an individual, it must be an enterprise or organization that is, at a minimum, 50% owned by foreign nationals in the U.S. who have the same nationality as the treaty country and who are maintaining their own E-2 treaty investor status. If for some reason the owners are not in the U.S., they must be legally eligible to receive an E-2 visa if they were to apply for status.
Terms and Conditions
An E-2 treaty trader or employee is only permitted to 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; the subsidiary employment requires executive, supervisory, or essential skills; and the terms and conditions of employment have not otherwise changed.
Period of Stay
The maximum initial period of stay in E-2 status is two years, and requests for extension of status may be granted in two-year increments. Although there is no maximum limit on the E-2 extensions, the foreign national must document and maintain an intention to depart the U.S. when their status expires.
E-2 Family Members
Treaty investors and employees may petition for spouses and unmarried children who are under 21 years of age for E-2 dependent status. The nationalities of the family members do not have to be the same as the treaty trader or employee. Spouses of E-2 holders may apply for work authorization with no specific restriction as to where they may work.