The E-2 Treaty Investor Visa allows citizens of certain countries to live and work in the US through investment in a US business. Investors, executives, managers or essential employees of foreign owned companies can apply for this visa. It’s a great option for those who want to invest big in the US but it has its own requirements and considerations.

The business must be a legitimate, bona fide enterprise actively engaged in the production of goods or services for profit. Additionally, the business must be an investment enterprise capable of generating sufficient income to support the investor and their family.

Allowing citizens of treaty countries to live and work in the US by investing big time in a US business this visa can also be used by family members.

As of December 23, 2022, the eligibility criteria has expanded under the recent amendments to Section 101(a)(15)(E) of the Immigration and Nationality Act (INA) which now includes additional documentation requirements for those who acquired nationality in their treaty country through financial investments.

Still the E-2 visa is a flexible but complex way to invest and work in the US. Whether you’re an investor looking to start a new business, a qualifying employee or a family member of an E-2 visa holder, this guide will give you a clear understanding of the requirements, responsibilities and benefits of the E-2 Treaty Investor Visa.

For more details or specific questions, check with the embassy or consulate in your home country as local rules may vary.

Quick Facts:

E-2 Visa is for qualiifed foreign investors who investing in a US-based business.

• Investment Options: New or existing US business.
• Employment Authorization: E-2 visa holder can work for their investment business. Spouse can work anywhere.
• Employee Sponsorship: Investors can bring employees from their home country if they have essential roles.
• Duration and Renewal: Initial stay is 2 years, unlimited 2 year extensions.

E-2 Visa Benefits

E-2 Visa has many benefits that makes it a great option for investors and entrepreneurs:

• Start a Business: Investors can run their own US business.
• Family Benefits:
  • Spouse Work Authorization: Spouses of E-2 visa holders typically receive work authorization automatically, without needing to apply for an Employment Authorization Document (EAD), as they can use their Form I-94 as proof of their work status.
  • Children’s Education: Unmarried children under 21 can study in the US.
• Flexible Investment: No minimum investment, though investments typically range from $50,000 to higher.
• Unlimited Extensions: As long as the business is compliant, the visa can be extended indefinitely.
• No Foreign Residence Requirement: Unlike other nonimmigrant visas, E-2 holders do not need to maintain a residence outside the US.

What is E-2 Visa?

The E-2 visa allows individuals to live and work in the US by investing in a US business. The visa duration varies (3 months to 5 years depending on the country of origin) but can be extended indefinitely as long as the business is operational and the investor meets the eligibility requirements.

Only citizens of treaty countries are eligible for E-2 visa.

E-2 Visa Eligibility Requirements

To qualify for an E-2, applicants must meet educational, nationality and residency requirements.

1. Nationality Requirement

Applicants must be citizens of a treaty country. Over 80 countries qualify, check the Department of State’s website for further information on the list.

2. Intent to Depart the US

Applicants must show intent to leave the US when their E-2 status ends. A simple signed statement of intent to return is enough. Maintaining a valid visa is crucial for re-entry into the US and extending authorized stay.

3. Investment

The E-2 visa requires an “investment” in a US business. This means:

• Fully Committed: The funds must be at risk, not just in a bank account or safe investment.
• Sufficient for Success: The amount must ensure the business can succeed and generate more than just a basic income for the investor.
• No Minimum Investment: Though there is no minimum, the investment must be substantial enough to run the business.
• Proportionality Test: This compares the amount invested to the total value of the business. For smaller businesses, a higher percentage of the total cost should come from the investor’s capital.

4. Active Role

Investors must actively manage or have a significant role in the business. This means either:

• At least 50% ownership, or
• Managerial position with control over the business operations, or
• Influential role in decision making and day-to-day management.
• E-2 investors should manage the business, not perform daily operational tasks.

5. Business Viability

The business must be real, operational and capable of growth, not a marginal enterprise (i.e. generating enough income for the investor and family, not just minimal income).

• Income Generation: The business should generate more than minimal income and ensure efficient operation to contribute to the US economy.
• Economic Impact: Businesses that create US jobs or have significant economic impact qualify.

6. Source of Funds

Investors must show the funds are from a legitimate source with documentation tracing the origin of the investment money. Funds must come from lawful sources such as personal savings, property sales or unsecured loans.

Qualifying vs. Non-Qualifying Investments

Qualifies	Does Not Qualify
Investment in an active business	Ownership of undeveloped land
Committed, at-risk funds	Uncommitted bank funds
Significant contribution to business success	Speculative investments with no active involvement
Key managerial role in business	Passive role in an unstructured business

Regulation Update

Individuals applying for E-2 visa after December 23, 2022 must meet the nationality requirements if they acquired their treaty country nationality through investment.

New Requirements

• Proving Continuous Residency: Applicants who acquired nationality through financial investment in a treaty country must show evidence of having been resident in that country for at least 3 years before applying.
• Enhanced Review of Nationality Status: USCIS may request additional documents to verify how the applicant obtained nationality if they became a citizen through investment.

At-Risk and Irrevocably Committed Investment

The invested funds must be at risk and already committed to the business.

Employees: E-2 Qualifications

Employees of E-2 investors may qualify if they meet nationality and role-based requirements.

Employees can also qualify for E-2 if they work in an E-2 business. Eligible employee categories are:

• Executives: Managers with control over the business operations.
• Supervisors: Individuals who oversee the operations.
• Specialized Skills: Employees with skills essential to the business.

1. Same Nationality as the Investor

Employees must be of the same nationality as the primary treaty investor or the treaty organization.

2. Defined Role and Essential Skills

Employees must be in a role of an executive or supervisory nature, or have specialized skills essential to the business. Examples could be:

• Executive/Supervisory Duties: Roles with control over business operations.

Specialized Skills: Skills or expertise that are critical to the business, such as niche technical skills or proprietary knowledge that is not available in the US labor market. While knowledge of a foreign language and culture is beneficial, it is not sufficient by itself to meet the special qualifications necessary for an employee’s services to be deemed essential for the efficient operation of a treaty enterprise.

What are Specialized Skills and Essentiality?

When applying for an E-2 visa for essential employees, it’s important to understand what qualifies as specialized skills and how to show that an employee is “essential” to the business. According to US immigration law (9 FAM 402.9-7(C)), an essential employee must have specialized skills necessary to the successful operation of the enterprise. Here, we will cover what are specialized skills and how essentiality is determined.

E-2 Visa Employee Essentiality

Essentiality is not based on a strict set of rules. Each case is evaluated individually, considering the business needs and the applicant’s skills.

Employees of the treaty investor may also qualify for E-2 visas if they share the same nationality as the principal investor.

Factors in Determining Essentiality

Business Needs: Essentiality is tied to the business’s operations and how the employee’s skills are crucial to the business.

Case-by-Case: Each application is reviewed on a case by case basis, no standard applies.

Specialized Skills

To be considered essential, the employee’s skills must be specialized and not readily available in the US workforce. The applicant should show expertise in these skills and explain why they are critical to the business.

Factors for Specialized Skills

• Training and Experience: The level of training and experience required to develop the skill.
• Uniqueness of the Skill: How unique or specialized the skill is in the US labor market.
• Availability of US Workers: Are US workers available with the same level of expertise.
• Salary: A high salary may mean specialized expertise in a competitive skill area.
• Proven Expertise: Documentation of the applicant’s qualifications and achievements in their field.
• Job Function: The role and duties of the applicant in the company.

Examples of Essential Employees

Start-Ups and Training Needs: Skilled employees may be essential for start-ups or early stage businesses as they need to train US based employees or establish new operational standards.

Familiarity with Overseas Operations: Employees familiar with the business’s overseas operations may qualify even if their skills are not unique as their knowledge of international procedures is critical during the initial setup phase in the US.

Do I have to have worked for the E-2 Company before?

A common myth is that an essential employee must have worked for the E-2 business before. In reality essentiality is based on the business’s need for the employee’s specialized skills not prior employment. The focus is on what the applicant brings to the business in terms of expertise and knowledge.

New Hires as Essential Employees: New employees may still qualify as essential if their skills meet the business needs.

Skill-Specific Requirement: What the business needs is the skillset not the applicant’s prior employment with the company.

Duration of Essentiality: How long are the skills needed?

The business must determine how long the employee’s skills will be essential. Some skills may be needed long term, others may be needed short term, such as during the setup phase.

Short Term vs Long Term Essentiality

Long Term: If the skill is critical to the business’s ongoing operations the employee may be essential for a longer period.

Short Term Skills Requirement: For start-ups or expansion into the US, specialized skills may only be needed for a specific period and then US based employees can take over.

Types of E-2 Investments: Startups, Franchises, Existing Businesses

Qualifying businesses are diverse and emphasize the importance of business investment as a critical criterion for obtaining an E-2 visa:

• Service based businesses like consulting or retail stores.
• Commercial businesses like import/export businesses.
• Licensed practices for qualified professionals (e.g. legal, healthcare).
• New Startups: For new businesses, the investment must cover the costs to set up and run the business. USCIS uses an “Inverted Sliding Scale” to determine if the investment is sufficient relative to the overall cost.
• Franchises and Existing Businesses: Investors can also buy a franchise or an existing business. Franchises can simplify the process as they have a proven business model. Investors often work with franchise consultants or business brokers to find suitable opportunities.

Investment Structuring: Beyond the Minimum

One of the most important aspects of the E-2 visa is the requirement for a “substantial” investment. While the amount varies depending on the business, rarely discussed is how to structure this investment to meet the visa’s “at-risk” requirement while minimizing personal financial exposure.

• Phased Investment: For industries that grow in stages consider a phased investment plan where capital is allocated in stages. While the initial investment must be sufficient to launch the business, additional funds can be released in stages, documented in the business plan to meet E-2 requirements.
• Investment Pooling with Multiple E-2 Investors: Multiple E-2 applicants from the same treaty country can pool their resources to invest in a larger business. For example two investors from the same treaty country could each invest separately and jointly hold an equity stake as long as both meet the “at-risk” and “substantial” requirements individually.

Tax Strategies for E-2 Visa Holders

E-2 visa holders are subject to US tax laws and structuring finances with tax in mind can make a big difference in long term financial health.

• Choosing the Right Corporate Structure for Tax Efficiency: The business’s legal structure (LLC vs C-Corp vs S-Corp) can impact tax liabilities. For example many E-2 investors prefer LLCs because of “pass-through” taxation but it’s wise to consult a tax professional as C-Corps can offer tax advantages for reinvested profits.
• Treaty Benefits on Worldwide Income: Nationals from certain countries may have tax treaties with the US and can offset certain US taxes with credits in their home country. This can be beneficial for E-2 investors who have income sources abroad.

How to Choose the Right E-2 Business

Choosing the right business is key to a smooth visa application process and long term success.

Here we will break down three E-2 requirements related to the business and give you tips on business types to consider—and avoid—based on these requirements.

1. Substantial Investment that is At-Risk

To qualify for the E-2 Visa, applicants must make a “substantial” investment in a US business. While the regulations don’t specify an exact amount, $100,000 or more is often recommended to make your case stronger.

What is an At-Risk Investment?

For the investment to be considered “at-risk” funds must be actively spent on the business before applying for the visa. Just holding money in a business account is not enough; funds must be committed to assets or expenses necessary to run the business.

Businesses to Avoid: Low-Cost Service Startups

Service based startups like consulting firms have low setup costs. With minimal expenses like office leases, furniture and equipment these businesses may struggle to meet the substantial investment and at-risk requirements of the E-2 Visa.

Alternative: If you want a service based business consider buying an existing business valued at over $100,000. By buying an existing business you can meet both the substantial investment and at-risk requirements more easily.

Businesses to Consider: High-Cost Startups or Existing Businesses

High Startup Cost Businesses: Businesses that require significant startup capital like those involving inventory, specialized equipment or technology are better suited for the E-2 Visa. By buying costly inventory or equipment you can show a substantial at-risk investment.

Existing Businesses: Buying an existing business gives you an added advantage as it already has an operating structure, potentially higher costs and established revenue which can strengthen your case.

E-2 Visa: What Evidence to Show for Source of Investment Funds

When applying for an E-2 visa investors must show that their investment funds come from a lawful and verifiable source. This requires specific documentation to show a clear trail of where the funds came from and how they were transferred to the US. Here’s a guide to the types of evidence needed and tips to meet this requirement.

Evidence to Show Source of Funds

To prove the legitimacy of the investment funds E-2 visa applicants should provide detailed documentation of the origin, transfer and current location of the money. Below are the main forms of evidence that may be required:

1. Personal Documents

• Tax Returns: Tax returns from the past few years show the investor’s income and financial history and support the funds.
• Pay Stubs: Recent pay stubs show ongoing employment and income that goes towards the investment amount.
• Bank Statements: Bank statements showing deposits and balances help to show a clear trail of available funds and their lawful origin.

2. Bank Transfer and Transaction Records

• Bank Transfer Documents: These documents show how the funds were moved from one account to another, if transferred to US accounts.
• Wire Transfer Receipts: Receipts for wire transfers show the investment from the investor’s account to the E-2 business.

3. Loan Agreements

• Loan Documentation: If any part of the investment capital is from loans, loan agreements need to be provided to show the loan was acquired legally.
• Conditions of Loan: The agreement should state the loan is secured by personal assets not by assets of the E-2 business to meet E-2 requirements.

4. Inheritance or Probate Documents

• Probate Documentation: If the funds are from an inheritance, probate documents show the source and amount received.
• Estate Settlement Records: These records show the transfer of inherited funds and their lawful origin.

5. Gift Funds

• Gift Letter: If the investment capital is a gift, the investor must provide a gift letter from the giver. This letter should show the relationship between the giver and the investor and the nature of the gift.
• Source of Giver’s Funds: Just like the investor, the giver must show where they got their funds from, with evidence such as tax returns, pay stubs or bank statements to prove they got the funds legally.

Paper Trail

The key to meeting the E-2 visa source of funds requirement is to show a clear paper trail of where the investment came from, who earned it and how it got to the US. This involves compiling a series of documents that link each stage of the funds journey.

Tips to show a Strong Paper Trail

• Document Each Step: Start with documents that show the original source (e.g. employment or sale of assets) then show the transfers and final deposits in US accounts.
• Chronological Order: Show the documents in a logical order so reviewers can follow.
• Notes: If there are multiple transfers or complex transactions add brief notes to explain the purpose and connection between documents.

2. E-2 Business Must be Active and For-Profit

The E-2 visa requires the business to be active and for-profit. Passive investments (e.g. residential real estate or shares in a business with no direct involvement) are not eligible. Treaty investors must ensure their business is active and for-profit to meet E-2 visa requirements.

What is an Active, For-Profit Business?

An active, for-profit business means regular operations, sales and a clear revenue model. It could be businesses that sell products, offer services or conduct commercial activities that engage customers and clients directly.

Businesses to Avoid: Non-Profits and Passive Investments

Non-Profits: Charities and non-profit organizations do not meet E-2 requirements as they don’t have a for-profit mandate.

Passive Investments: Investments in real estate or other assets without active management are generally not allowed. Real estate development or property management companies may qualify if the investor is actively involved in operations and revenue generation.

Business Options

Retail or Franchise: These often involve direct customer interaction and tangible sales which fit the active for-profit model.

Online E-commerce: An online store that manages products and customer orders can be active if it involves significant operational responsibilities.

3. E-2 Business Cannot be a Marginal Enterprise

The E-2 business cannot be a “marginal enterprise” meaning it should have the ability to generate income beyond just providing a minimal living for the investor and their family. Marginal businesses which may struggle to meet these standards often have limited growth potential or low revenue projections. Maintaining treaty investor status requires the business to generate sufficient income and contribute to the US economy.

Two Ways to Not be Marginal

To not be classified as marginal the business should demonstrate either:

Income Generation Potential: Show the business will generate enough income to cover the investor’s and their family’s living expenses.

Economic Contribution: Hiring employees or showing a need to hire in the future can show the business contributes to the US economy.

Businesses to Avoid: Low Profit Potential Ventures

Low earning businesses or ventures with limited growth potential may not meet the non-marginality requirement. For example businesses with low projected earnings or minimal operational scale are at risk of being marginal.

Business Types: Companies with Growth and Hiring

Franchises or Small Businesses with Expansion Plans: Franchises are often considered favorable since they have a proven business model and growth potential. They may also require more employees over time which can show a real economic impact.

Businesses in Growing Industries: Consider industries with high demand such as technology, health and wellness services or food and beverage. These industries often have strong growth potential and can more easily show profitability.

Ideal E-2 Visa Business Characteristics

To increase E-2 Visa chances consider a business that has:

High Startup Costs or Purchase Price over $100,000: This ensures you meet the substantial investment requirement.

Active, For-Profit Model: The business should sell products or services and generate revenue.

High Profit Potential and Need for Employees: This can avoid marginal enterprise classification and show the business will provide for more than one person with minimal income and economic contribution.

Dependents’ Education and Employment Opportunities

The E-2 visa offers many opportunities for dependents, especially in education and career development that are often overlooked.

• Special Education Benefits for Minors: Dependents under 21 can attend public or private schools and depending on the state they may be eligible for in-state tuition, which can save thousands on college costs.
• Career Pathways for Spouses Through E-2S Work Authorization: With automatic work authorization, spouses of E-2 visa holders can work any job or start their own business, effectively have an independent career path in the US. This flexibility is great for entrepreneurial spouses or those who want to establish a professional presence in the US.

Marginality Test in Your Business Plan

E-2 businesses must not be marginal meaning they must generate more than minimal income. However there are ways to meet this requirement that go beyond financial projections.

• Job Creation as a Marginality Test Strategy: Including job creation plans in the business plan helps the E-2 case. By specifying hiring goals for US workers (even part-time or seasonal) within the first few years an applicant shows the business’s economic impact and viability.
• Community Impact or Niche Services: For small businesses, having a niche or underserved service can add credibility. Businesses that cater to unique cultural needs (like specialized retail or language services) can show they are filling a market demand and thus justify their contribution beyond just income.

Extension Strategies: Travel to Reset Visa Duration

One little known benefit of the E-2 visa is that investors and essential employees can technically reset their 2 year stay by re-entering the US without filing for an extension.

• Travel as an Extension Strategy: Leaving the US and re-entering on a valid E-2 visa grants a new 2 year period. This can be useful if an applicant wants to avoid the time and cost of filing an extension with USCIS.
• Managing Travel and Business Commitments for Smooth Renewals: Traveling frequently can however raise questions about commitment to the US business. To manage this, applicants should have clear reasons for international travel that are related to business growth, such as expanding into international markets or sourcing unique products.

Duration of Stay and Renewals

• Visa Validity: 3 months to 5 years depending on the applicant’s nationality.
• Entry-Based Status: E-2 holders get a 2 year stay each time they enter the US.
• Unlimited Renewals: E-2 visas can be renewed indefinitely as long as the business meets the requirements.

Using the E-2 Visa to Build Credit and Financial History in the US

Building credit can be a big advantage for E-2 visa holders who want to expand their business or make personal investments.

• Business Credit for Future Growth: Registering with US credit bureaus and applying for business credit can open up more financing options. For example having a business line of credit can provide working capital for growth and show financial stability to lenders.
• Personal Credit for Financial Freedom: E-2 visa holders should consider applying for personal credit cards, utilities or even small loans to establish a US credit score. This credit history can make it easier to get loans for future investments or personal expenses.

Other Paths to Permanent Residency for E-2 Holders

While the E-2 visa is nonimmigrant, there are alternative legal ways for some investors to transition to permanent residency.

• Transitioning Through Employment-Based Green Cards: An E-2 visa holder can apply for an EB-2 or EB-3 green card if a sponsoring employer will hire them. In some cases the E-2 business can sponsor the applicant if it meets the EB category requirements.
• Applying Through a Regional Center Investment (EB-5 Program): The EB-5 Immigrant Investor Program allows investors to get a green card through a higher investment in a US commercial enterprise, typically through a regional center. Although the minimum investment is much higher ($800,000-$1.05 million) it may be an option for E-2 visa holders looking for a permanent solution.

How to Apply for an E-2 Visa

Processing times and steps vary depending on whether you apply in the US or at a US Consulate abroad.

Applying from Within the US

1. Confirm Nationality and Eligibility: Make sure you are a national of an E-2 treaty country and meet all the visa requirements.
2. File Form I-129: Petition for a Nonimmigrant Worker.
3. Gather Documents: Business plans, financials, proof of investment, source of funds.
4. Passport: Must be valid for 6 months beyond the intended stay.
5. Recent Photo: 2 by 2 inch photo that meets US visa photo requirements.
6. Proof of Investment: Financials, business registration, source of funds.
7. Business Plan: A clear plan showing how the business will generate enough revenue to support the investor and dependents.
8. Proof of Intent to Return: Verbal declaration of intent to leave is usually sufficient.
9. Consider Premium Processing: If needed.
10. Wait for Decision: Once approved your status will be E-2.

Applying from Outside the US (Consular Processing)

1. Fill out Forms DS-160 and DS-156E: Online visa applications are required for E-2.
2. Schedule an Interview: Once the application is processed attend an interview at the US Embassy.
3. Get Visa Stamped: If approved your passport will be stamped, usually for 5 years.

Submission Tips

1. Mail Submission

• If you choose to mail in your application, include a pre-paid, self-addressed envelope for the return of your documents and visa.
• Any additional documents requested by the consulate.

3. Additional Documents if Required

• In some cases the consular officer may ask for extra documents to verify qualifications or employment eligibility.
• Prepare copies of employment contracts or appointment letters as proof of your position.
• The consular officer will determine the appropriate visa category based on the applicant’s purpose of travel and eligibility under U.S. law.

4. Interview Tips (If Required)

• Interviews are rare but be prepared to talk about your qualifications, why you want to teach and your understanding of the host country’s education system.
• Do not make non-essential travel plans until your passport is returned.

E-2 Visa Approval Rates (2018-2023)

Year	Approvals	Refusals
2018	41,181	13,489
2019	43,286	5,115
2020	26,759	3,266
2021	33,129	2,683
2022	45,878	4,823
2023	54,812	5,615

Processing Time

If you are considering the E-2 visa to live and work in the US, you should know that processing times vary depending on where you apply. If you are in the US you can apply for a change of status directly with USCIS, if you are outside the US you need to apply at a consulate or embassy. Here’s a guide to processing times, forms and steps for both scenarios and tips for extensions.

1. E-2 Change of Status (Within the US)

If you are already in the US in a lawful nonimmigrant status you can apply for a change of status to E-2 without leaving the country.

Change of Status Details

• Forms Required: Form I-129 (Petition for a Nonimmigrant Worker) and Form I-539 (Application to Extend/Change Nonimmigrant Status).
• Current Processing Times: As of February 19, 2022, USCIS processes Form I-129 for E-2 status in 5.5 to 7.5 months. Check USCIS processing times here.

Premium Processing

• Expedited Processing: Premium processing (Form I-907) is available for an additional $2,500 fee. This will get you a response (approval or request for evidence) within 15 calendar days.

2. E-2 Status vs E-2 Visa

It’s important to understand the difference between E-2 status via change of status and E-2 visa.

• E-2 Status: Allows you to live and work in the US but does not permit re-entry if you leave. If you exit the US on E-2 status you must apply for an E-2 visa at a US consulate to re-enter.
• E-2 Visa: Allows entry and re-entry to the US and can be obtained at a consulate or embassy outside the country.

3. E-2 Visa Consular Processing (Outside the US)

If you are applying from outside the US your E-2 visa application will be processed by a US embassy or consulate.

Consular Processing Details

• Required Forms: Submit Form DS-160 (Online Nonimmigrant Visa Application) and Form DS-156E (Nonimmigrant Treaty Trader/Investor Application).
• Where to Apply: You can apply from your country of citizenship or from a country where you currently reside. Processing times vary greatly by location so it’s worth comparing.

Consular Processing Timeline

• Typical Processing Time: From one month to six months depending on location and consular resources.
• Check Consulate Operations: Some consulates have delays or limited interviews. Check U.S. Embassy and Consulate websites for operational status.

4. E-2 Visa Extension Processing Times

E-2 visa holders and their dependents must extend their status every two years to remain in the US. There is no limit to the number of extensions as long as the business is operational and meets E-2 requirements.

Extension Options and Requirements

1. Extend by Leaving the US: Exit the US and reapply for the E-2 visa at a US consulate or embassy, following the process above.
2. File for Extension in the US: Submit Forms I-129 and I-539 before the I-94 expires.

Key Points for Extensions

• 240 Day Grace Period: If you file for an extension before your I-94 expires you get 240 days of work authorization while waiting for a decision.
• Late Filings: If the extension is filed after the I-94 expires you can only work for 40 days while waiting for the decision.

Processing Times and Premium Processing for Extensions

• Standard Processing Time: The extension processing time is the same as the initial application (5.5 to 7.5 months).
• Premium Processing Available: You can pay for premium processing to get a response within 15 calendar days.

E-2 Tips

• In the US: Apply for change of status with USCIS using Forms I-129 and I-539. Consider premium processing if time is of the essence.
• Outside the US: Apply for E-2 visa at a consulate or embassy using DS-160 and DS-156E. Compare processing times if you have multiple options.
• Extensions: File on time to maintain status. Use the 240 day grace period if filed before the I-94 expires.

Whether you apply in the US or outside the US, knowing the requirements and timelines will help make the process easier for you. For complex cases working with an immigration attorney can help you and make the process even smoother.

E-2 Visa Cost

The E-2 Visa cost includes the investment and several application fees. Here is a breakdown of the main costs:

• Investment: Varies by business type; no minimum required but investment must be sufficient to ensure business success.
• Application Fees: Fees vary by location and form type, including premium processing fees if selected.

Fees and Reciprocity

• Visa Application Fee: $315 non-refundable.
• Visa Issuance Reciprocity Fees: Additional fees may apply for citizens of certain countries based on reciprocity agreements.

Note: Some Consulates may require additional biometrics or reciprocity fees based on nationality.

Applying at Different Consulates

Each US consulate has its own processing times and procedures so it is recommended to apply at the consulate in the applicant’s permanent country of residence.

For more information consult with our legal advisors who are familiar with US immigration and business laws.

E-2 Approved

If Approved in the US

• Authorization: You can start working in the US business immediately.
• Travel Requirements: To re-enter the US a consular visa stamp will be needed, a new application will be required.

If Approved outside the US

• Entry to the US: Present visa at port of entry, a CBP officer will issue an I-94 and note your E-2 status.
• Work Authorization: Start working for your invested business upon arrival.

Dual Nationality and E-2 Visas: Matter of Ognibene and Matter of Damioli

The issue of dual nationality and US immigration, especially E-2 visas has been addressed by key court decisions. Immigration adjudicators generally allow dual nationals to use only one nationality for US immigration purposes. This article reviews two important cases, Matter of Ognibene and Matter of Damioli and their implications for E-2 visa applications.

1. Dual Nationality and E-2 Status Changes: Matter of Ognibene

In 1983 the Board of Immigration Appeals (BIA) ruled in Matter of Ognibene that a dual national who entered the US on one nationality cannot later switch to the other nationality for immigration benefits, including E-2 status. Here’s a summary of the case and its impact on E-2 visa applications.

Facts

• Nationality: The applicant was a dual national of Canada and Italy. He entered the US as a Canadian but later tried to change to E-2 status as an Italian, as Italy was (and is) an E-2 treaty country and Canada was not at that time.
• Basis for Ruling: The BIA based its decision on section 214 of the INA which states that nonimmigrants are admitted under conditions prescribed by the Attorney General. Since the applicant entered on a Canadian nationality he could only use Canadian nationality throughout his stay.

Key Points

• Single Operative Nationality: The BIA ruled the applicant could only use his Canadian nationality during his US stay, not switch to Italian nationality for E-2 benefits.
• Reasoning Against Nationality Switching: Allowing a dual national to change nationality in the US would create complications in immigration proceedings. The BIA held the nationality at the time of entry must remain the same.
• E-2 Applications: After this case the Department of State incorporated this principle in its guidance, specifically in 9 FAM 41.51 N3.3, and applied the same rule to E-1 treaty trader visas.

2. Dual Nationality and E-2 Employers: Matter of Damioli

The 1980 case Matter of Damioli dealt with a different aspect of dual nationality: can a dual US-Italian national confer Italian nationality on her business to qualify as an E-2 treaty investor employer.

Facts

• Applicant’s Position: The E-2 visa applicant sought status as an employee of an Italian owned business. The business was owned by a dual US-Italian national and the applicant argued the owner’s Italian nationality would qualify the business for E-2 employment purposes.
• Problem with US Citizenship: The BIA pointed out that US citizenship takes precedence in cases like this. A dual national US citizen cannot use their foreign nationality (Italian in this case) to qualify a business for E-2 status.

Key Points

• Primary Nationality Principle: The BIA held that US citizens cannot use their foreign nationality to confer E-2 eligibility on a business. US law and immigration statutes assume US citizenship supersedes other nationalities for immigration purposes.
• Non-Interchangeability of Dual Nationalities: The decision confirmed that dual nationalities are not interchangeable in US immigration especially when one of the nationalities is US.
• E-2 Employers: Although the Foreign Affairs Manual (FAM) does not prohibit US citizens from being E-2 employers based on their other nationality, it does prohibit US lawful permanent residents from being majority owners of an E-2 business.

3. Dual Nationals Applying for E-2 Key Points

Dual nationals applying for E-2 status should be aware of these cases and their implications for immigration purposes. Here’s what to consider:

• Nationality Consistency: If you entered the US using a nationality that does not qualify for an E-2 visa (a non-treaty country) you cannot switch to your treaty country nationality while in the US to get E-2 benefits.
• Depart and Re-Enter: If you want to use a treaty nationality for E-2 purposes you must leave the US and re-enter using your treaty country passport. This will align your entry status with your E-2 status.
• For US Dual Nationals: US citizens cannot use their other nationality to confer E-2 benefits whether as an investor or employer as US citizenship takes precedence in these cases.

Conclusion: Dual Nationality and E-2 Visa Eligibility

The decisions in Matter of Ognibene and Matter of Damioli make it clear that dual nationals cannot switch nationalities for immigration benefits once in the US. Dual nationals applying for E-2 status should consult with an immigration attorney to understand how these rules impact their e status and case.

For dual nationals applying for E-2 visas, planning and awareness of these cases is key to avoid eligibility issues and a smooth process.

After E-2 Visa is Approved

If Approved in the US

• Authorization: You can start working in the US business immediately.
• Travel Requirements: To re-enter the US a consular visa stamp will be required, a new application will be needed.

If Approved Overseas

• Entry to US: Present visa at port of entry, a CBP officer will issue an I-94 and indicate E-2 status.
• Work Authorization: Start working for your business upon arrival.

How long can E-2 visa holders stay in the US?

The E-2 visa allows an initial 2 year stay with unlimited 2 year extensions. Regular travel outside the US may grant additional entry permissions upon return.

For more info and customized guidance on your E-2 process consult with immigration experts to increase your chances of success and smooth out the process.

Period of Stay and Extensions

Initial Stay and Extensions

E-2 visa holders can stay for a maximum of 2 years initially. Extensions can be granted in 2 year increments with no limit as long as the business remains operational and the investor intends to leave the US when status expires.

• Automatic Readmission: After international travel E-2 holders may get a 2 year readmission period upon return if they meet re-entry requirements.

Renewal and Intent to Return

• Unlimited Extensions: The E-2 visa can be renewed indefinitely in 2 year increments as long as the business remains active and successful.
• Nonimmigrant Intent: Although E-2 does not have dual intent, applicants do not need to prove foreign residence they won’t abandon. A simple statement of intent to return is enough.

E-2 Status Terms: Job Flexibility and Substantive Changes

E-2 visa holders can only work for the business or activity for which the visa was approved. Any major change such as a merger or sale requires notification and approval from USCIS.

• Substantive Changes: If the business merges or is acquired or if a major change affects the E-2 relationship, a new Form I-129 must be submitted with supporting documents to prove continued eligibility.

Visa Renewal, Ineligibility and Other Considerations

Renewing Your Visa

New applicants and renewals follow the same process. The Interview Waiver Program (IWP) may allow eligible applicants to renew without an interview. Check local embassy for eligibility.

Misrepresentation and Fraud

Providing false information in your application may bar you from getting a US visa or entering the US for life. Review Ineligibilities and Waivers for more info.

Visa Denial and Administrative Processing

In case of denial you will be informed of the grounds of ineligibility. Some applications may require additional administrative processing after the interview which will extend the processing time.

Can you work for another company with E-2 visa?

E-2 visa holders are generally limited to working only for the business for which the visa was approved. However there are a few limited exceptions to this rule and options for E-2 dependent spouses. Here’s when and how an E-2 visa holder can work for another company and the conditions to consider.

1. Employment Restrictions for E-2 visa holders

Work Limited to the Approved E-2 Business

The principal E-2 visa holder—whether an investor or employee—can only work for the E-2 business that was approved in the visa application. This means they can only work in the same role, duties and business activities listed in the application. Any unapproved changes will be a violation of E-2 status.

Example of a Violation

A well-known case, Matter of Laigo, illustrates this. An E-2 visa holder who operated a business for a Philippine Cultural and Trade Center violated her E-2 status by working for another company selling cemetery plots for commissions. This additional work was not related to her E-2 status so she was out of status.

2. Exceptions: Working for Subsidiaries of the E-2 business

An E-2 employee can work for other companies if they are subsidiaries of the approved E-2 business. Here are the conditions:

• Parent-Subsidiary Relationship: The E-2 business and any subsidiary must have a verified parent-subsidiary relationship.
• Treaty Organization Requirement: The subsidiary must also be a treaty-based organization or enterprise.
• Role Consistency: The employee’s work with the subsidiary must require executive, supervisory or essential skills related to their role in the primary E-2 business.

If these conditions are met and presented at the time of the E-2 visa approval, work within subsidiaries will not be a violation as it’s considered an extension of the approved E-2 employment.

3. Contractual Arrangements with other companies

In some cases an E-2 visa holder can work indirectly for other companies through a contractual arrangement. Here’s how:

• Service Agreements: If the E-2 company contracts with another company to provide services, the E-2 visa holder can perform those services as part of their role within the E-2 company.
• Consistency in Services: The services must be closely related to the E-2 business’s core services or products so the role is consistent with E-2 status.

This option gives some flexibility as long as the E-2 company is the one offering services through an official contract and not the E-2 visa holder working for another company.

4. Employment Freedom for Dependent Spouses

Unlike principal E-2 visa holders, dependent spouses of E-2 visa holders have complete freedom to work for any US or foreign employer, full-time or part-time. They can also be self-employed if they want to. This is exclusive to spouses and not to the primary E-2 investor or employee.

5. Compliance

E-2 visa holders considering work outside their approved business should be extremely careful. Unauthorized changes of employment can lead to violations that can put the holder’s status at risk. If in doubt, consult an immigration attorney.

When Seeking Additional Employment:

• Legal Advice: Consult an immigration attorney to see if the work fits within the exceptions or if another visa would be more suitable.
• Avoid Unauthorized Changes: Working for another company without approval can result in falling out of E-2 status and potentially severe consequences for residency.

Family Members of E-2 Visa Holders

Spouses and children of E-2 visa holders can accompany them to the US and get E-2 dependent status. Family members can stay as long as the principal E-2 visa holder is in status.

Dependent Spouses’ Work Authorization

Spouses of E-2 holders have automatic work authorization and can work for any employer. Proof of work authorization includes:

• An unexpired I-94 indicating E-2S status.
• A valid EAD, although this is not required for E-2 spouses.

Children

Children under 21 can attend school or college in the US, but not work.

Family Members and Dependents on E-2 Visa

Derivative Visas for Spouses and Children

• Eligibility: Spouses and unmarried children under 21 can apply for derivative E-2 visas. Their visa duration will depend on their country’s treaty with the US.
• Employment Authorization for Spouses: As of November 2021, E-2 spouses do not need separate employment authorization (EAD) to work in the US.
• Children: Children cannot apply for work authorization but can attend school.

E-2 Visa Changes and Current Impact of Labor Disputes

Labor Disputes

For Canadian or Mexican E-2 visa holders, a strike or labor dispute at their intended workplace can affect their ability to enter or stay in the US. E-2 holders should be aware of these situations as they may need to update their status or visa approval.

Marginality and Business Impact

New E-2 applicants must plan their business carefully to avoid the marginality threshold. For new ventures, a solid business plan with realistic financial projections is key to showing the business can grow and contribute to the US economy.

Additional:

• Apostille Services: For required documents, check with your country’s designated authority for apostille certification. The UK for example, does this through the Foreign and Commonwealth Office.
• Criminal and Medical Records:
• Criminal History: If applicable, provide a copy of your CRB check or equivalent document.
• Medical History: If there are any medical conditions, include a doctor’s letter explaining these.

E-2 Visa Application Documents Checklist

Documents required for the E-2 application will vary depending on your situation. Here’s the essential list:

1. Visa Application Form: Fill in all details accurately and match with supporting documents.
2. Passport Photo: Recent color photo (3.5 x 4.5 cm) that meets visa photo requirements.
3. Original Passport: Valid for at least 6 months beyond intended stay.
4. Certificate for Confirmation of Visa Issuance: Issued by the Ministry of Justice in Korea. If applying as an EPIK (English Program in Korea) teacher, you can submit your Notice of Appointment and Employment Contract instead.
5. E-2 Checklist: Review and fill out the E-2 checklist (available on consulate websites).
6. Visa Fee: Check the consulate’s current fees as fees vary by nationality.

E-2 Visa Application Documents

1. Visa Application Forms (DS-160 and DS-156E): Fill out DS-160 for all and DS-156E for executive or essential employees.
2. Valid Passport: Passport must be valid for at least 6 months beyond intended stay.
3. Recent Photo: One 2 x 2 inch photo that meets US visa photo requirements.
4. Proof of Investment: Wire transfer receipts, business registration and documents showing source of funds.
5. Business Plan: Must show the business can support the investor and dependents.
6. Proof of Intent to Return: E-2 visas do not allow dual intent, so investors must show they will leave the US upon completion of their business activities, although a verbal declaration is usually sufficient.

Notes:

• Investment: No minimum investment requirement but must be sufficient to make the business viable.
• Nationality: Only for nationals of treaty countries.
• Business Control: Investor must have control of the business, usually defined as owning more than 50% of the company.

E-2 to Green Card

E-2 visa is a nonimmigrant visa and does not lead to a green card directly. However, there are several ways to transition to permanent residency.

1. EB-5 Immigrant Investor Visa

• $1,050,000 minimum investment (or $800,000 in targeted areas) and creation of 10 full-time US jobs.
• Benefit: E-2 investments and jobs created can count towards EB-5, a faster path to a green card.

2. Family-Based Green Card

• If a close family member (e.g. spouse, parent or child) is a US citizen or green card holder.

3. Employment-Based Green Card

• If a US company offers you a permanent job and sponsorship, you may be eligible through employment.

4. EB-1A (Extraordinary Ability)

• Self-petition option available for those with extraordinary ability in their field.

5. EB-2 National Interest Waiver (NIW)

• For those with exceptional ability whose work is in the US national interest. NIW allows self-petition without a sponsor.

FAQs

Can E-2 Visa Holders Get a Green Card?

E-2 visa does not lead to a green card directly; however, there are pathways through employment-based or family-based green cards. Remember E-2 visa requires nonimmigrant intent so green card application is more complex.

Can E-2 Dependents Work in the US?

Yes, spouses of E-2 visa holders can work under E-2S status without need for separate work authorization. Dependents must remain unmarried and under 21.

Do E-2 Holders Need an Additional Work Permit?

No additional work permit is required; E-2 visa provides direct authorization to work within the invested business only.

What if I have a criminal or medical history?

If you have any criminal or medical history, you must disclose this in your application and provide supporting documents (e.g. CRB checks or medical letters). Transparency is key to avoid delays or denial of your visa application.

Can I use a temporary degree or graduation letter?

No. Temporary degree or letter of graduation is not accepted. Only a fully conferred bachelor’s degree from an accredited institution will be accepted.

How much is the visa fee?

Visa fees vary by nationality. Check the consulate’s visa fee page for the latest information.

If I need an interview?

If an interview is required, consulates will notify you. Do not book non-essential travel until you receive your passport and visa.

Can E-2 lead to a Green Card?

E-2 visa does not allow dual intent but holders can adjust status to an immigrant visa, such as EB-5 investment visa or family sponsorship.

What is the “Inverted Sliding Scale”?

Inverted Sliding Scale means the smaller the business’s total cost, the higher the percentage of the investor’s investment must be. This ensures the investment is substantial relative to the business’s size.

Can E-2 holder live in the US indefinitely?

Visa allows for indefinite extensions but the holder must maintain nonimmigrant intent and a plan to return to home country after the business ends.

How does US treat sale of foreign residence?

Foreign Affairs Manual states that selling a foreign residence or moving belongings to the US does not disqualify the applicant as long as they express intent to leave upon visa expiration.

Can a foreign company own the US business for E-2 visa?

Yes, but at least 50% of the foreign company must be owned by nationals of a treaty country.

Do I need to hire US employees?

Not required but hiring US employees will strengthen your case as it will show that your business is not marginal and has economic impact.

What does “at-risk” investment mean?

Your investment must be irrevocably committed to the business meaning it can be partial or total loss. Funds held in a bank account do not qualify as at-risk investment.

What is a “marginal business”?

A marginal business is one that does not generate enough income to support the investor and their family or contribute significantly to the US economy.

Can I work for another company on E-2 visa?

No, you can only work for the business you established or were hired by under the E-2 visa. However, E-2 employees can work for a subsidiary of the parent company if the relationship was established during the application.

Can I use loaned funds for my investment?

Yes, but the loan must be secured by personal assets not the business itself.

Can I buy a franchise for E-2 visa?

Yes, franchises are a popular choice for E-2 visas because they provide a proven business model and brand recognition.

Can I sell my E-2 business?

Yes, but you must leave the US or apply for another visa status once the business is sold.

What if my business fails?

If your business closes, you will lose your E-2 status unless you acquire another qualifying business or change to another visa status.

Can I invest in multiple businesses under E-2 visa?

Yes, but the original investment must meet the substantiality requirement and additional investments must not detract from the operation of the primary E-2 business.

What are the tax implications of E-2 visa?

E-2 visa holders are generally subject to US tax laws, including taxes on income earned in the US. Consult a tax professional for specific advice.

What if I change my business model?

Major changes to your business may require an amendment with USCIS or reapply for a new E-2 visa.

Can E-2 visa holder apply for TPS (Temporary Protected Status)?

If eligible for TPS due to conditions in your home country, it may affect your E-2 status. Consult an immigration attorney.

Bottom Line

E-2 visa is a great option for foreign investors and entrepreneurs to grow a business in the US. It offers flexibility, benefits for family members and can be renewed indefinitely. But transitioning from E-2 to green card requires careful planning and strategy, best handled with professional legal help.

Now that you know the E-2 requirements, application process and green card options, E-2 visa holders can make informed decisions on their US investment and long term residency if desired.

Let us put our skills to work for you. We can analyze your case, identify the available options, and help you decide the safest, most cost-effective and quickest route to success.