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:
When E-2 applicant is already in the United States:
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.
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.
Period of Stay
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.
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 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.
General Qualifications required of an E-2 Treaty Investor
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.
Treaty Investor’s Investment
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.
Investment Enterprise must be bona fide
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.
Investment Enterprise may not be marginal
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. 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.
General Qualifications of an Employee of a Treaty Investor
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.
Definition of executive or supervisory duties
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.
Definition of special qualifications for E-2 visa purpose
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
What is a “Treaty Country”?
A treaty country is a foreign state with which a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent exists with the United States.
What is a Treaty Country Nationality?
The authorities of the foreign state of which the alien is a national determine the nationality of an individual treaty investor. In the case of an enterprise or organization, ownership must be traced as best as is practicable to the individuals who are ultimately its owners.
Which countries or regions are on the list for the Treaty Investor Services?
For a list of Treaty Investor countries, please visit the U.S. Department of State’s website at: http://travel.state.gov/content/visas/english/fees/treaty.html
What are the requirements for the Treaty Investors Category?
E-2 status is designed for qualifying individuals who are citizens or nationals of countries with a qualifying Commerce and Navigation treaty with the U.S., and who will solely develop and direct the operations of an enterprise in which he/she has invested or is actively in the process of investing substantial capital.
How does USCIS define “investment” for E-2 visa purpose?
USCIS defines investment as the treaty investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit.
Note: The funds used by the investor must be the investor’s own unsecured personal funds, and not a loan or some other secured financial instrument.
What is considered a “bona fide enterprise” for the E-2 classification?
A bona fide enterprise is an enterprise that is real, active, and operating commercially or an entrepreneurial undertaking that actually produces services or goods for profit.
How much investment is considered a “substantial amount of capital” for the E-2 classification?
A substantial amount of capital is considered an amount, which meets the following three criteria:
- That is substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise being considered;
- Sufficient to ensure the treaty investor’s financial commitment to the enterprise’s success; and
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
What does “solely to develop and direct” mean?
Solely to develop and direct means that the treaty investor can demonstrate that he or she develops and directs the investment enterprise by:
- Showing control via ownership of at least 50% of the enterprise; or
- Showing operational control through a managerial position or other corporate device, or by other means.
What is a “marginal enterprise”?
A marginal enterprise is an enterprise 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. In other words, a marginal enterprise is only sufficient enough to provide a minimal living and nothing more for the treaty investor.
Can a U.S. employer file for E-2 status for an employee?
No. A United States employer cannot petition for E-2 status for an employee since this visa classification is specifically set aside for foreign nationals, including foreign employers, with a Treaty of Friendship, Commerce, Navigation or some similar type of agreement between the United States and a foreign nation.
Can an employer get E-2 status for an employee?
An employer can get E-2 status for an employee if the employee and employer meet all of the requirements for E-2 status.
What requirements must an individual meet to become an E-2 Treaty Investor?
In order to obtain an E-2 Treaty Investor status, one must meet the following eligibility requirements:
- A treaty, with treaty investor provisions, exists between United States and the foreign state of which the petitioner is a citizen;
- The individual and/or business possess the nationality of the treaty country;
- Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States;
- Is seeking entry solely to develop and direct the enterprise; and
- Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status.
Note: A substantial amount of capital is distinct from that of a relatively small amount of capital in a marginal enterprise that is solely for the purpose of earning a living.
What requirements must the employee meet to become an E-2 employee?
In order to obtain an E-2 employee status, one must meet the following eligibility requirements:
- The employee must be a national of the treaty country;
- The employee’s employer must either be in valid E-2 status, or if outside of the U.S., the employer is classifiable under E-2 status;
- The employee is coming to the United States to fill an executive or supervisory position; or has special qualifications essential to the firm’s operations in the United States; and
- The beneficiary intends to depart the United States when the E-2 status terminates.
What initial evidence or documents must be filed with the E-2 Nonimmigrant Visa Application at the U.S. Consulate?
The individual should be directed to the U.S. consulate nearest the individual’s place of residence or to the Department of State’s website at www.state.gov. Please note that each embassy/consulate has its own country specific requirements and application rules.
Can one petition be filed for the E-2 employer and employee (not the E-2 Treaty Investor)?
No. Separate petitions must be filed for employer and employee. The filing and approval of the employer’s Form I-129 must precede the employee’s filing of the Form I-129.
Can the E-2 who is an employee change employers and remain in E status? An E-2 employee cannot change employers and remain in E-2 status. However, another employer may sponsor the employee for E-2 status. USCIS must approve any substantive changes in the terms or conditions of E status prior to the change of employment.
Can the E-2 who is an employee work for more than one employer?
No. An E-2 employee can only work for the employer that filed the petition or one of the employer’s affiliates, subsidiaries, or branches.
What is the initial period of admission granted to the E-2 nonimmigrant?
An E-2 nonimmigrant is usually granted an initial period of admission of 2 years.
What is the maximum period of stay granted to the E-2?
E-2 Treaty Investors do not have a maximum period of stay.
Note: E-2 Treaty Investors involved in start-up activities only receive two years since it is presumed they will conclude their activities in a two year period.
How can the E-2 visa holder extend his/her status if their status is expiring?
An extension of stay for an E2 may be authorized in increments of up to two years. Each extension must be applied for with all supporting documents.