Treaty investors and employees of treaty investor who currently reside in America with a lawful nonimmigrant visas can file Form I-129 to request that their status be changed to E-2 classification. Applicants should understand that there are court decisions that may affect the continued use of I-129 Forms and any related issues. An experienced immigration lawyer can advise you of your rights and any changes in the current law.
The instructions for Form I-129 are rather lengthy and complicated. Here are some of the core requirements:
- Generally, US employers may file this form with supporting documents to classify themselves and their workers an E-2 nonimmigrant employees.
- Applicants must complete the form and pay the appropriate filing fees. Some applicants may be required to submit to a biometric services appointment.
- Some applicants may be required to file Form I-94.
- Copies are usually permissible except where an original is required.
- Translations to English may be required for some documents.
Form I-129 includes the need for the following information:
The basis for the classification
This generally includes checking the appropriate box if the applicant:
- Is seeking new employment because they:
- Are not in the US and has no classification.
- Will start employment for a new US employer “in a different nonimmigrant classification than the beneficiary currently holds.”
- Will work for the same employer but in a different nonimmigrant classification.
- Continuation of previously approved employment without change with the same employer. This box should be checked if the applicant is applying “to continue the employment of the beneficiary in the same nonimmigrant classification the beneficiary currently holds and there has been no change to the employment.”
- Change in previously approved employment. This box is checked to inform USCIS that there is a non-material change to preapproved employment. For example, a change in job title without any new duties
- New concurrent employment. This box is checked if the applicant (for example, the employer) is requesting that a worker start a new job with an “additional employer in the same nonimmigrant classification the beneficiary currently holds while the beneficiary will continue working for his or her current employer in the same classification.”
- Change of employer. This box is checked if the nonimmigrant classification will stay the same but the beneficiary (worker) will be starting work with a new employer.
- Amended petition. This box is checked if the applicant is notifying USCIS of “a material change in the terms or conditions of employment or training or the beneficiary’s eligibility as specified in the original approved petition.”
Petitioners and employers need to check the right box depending on which of the following actions they are requesting:
- Notify the office listed in Part 4 (of the Form), so the beneficiary(ies) can seek a visa or admission. This item is for applicants/workers outside of the US or currently in the US but who will be leaving the US to obtain a visa/admission abroad.
- Change the status and extend the stay of beneficiaries who are now in the United States in another status. This is for applicants currently in the US in a different nonimmigrant classification who are seeking E-2 nonimmigrant status. Some exceptions may apply.
- Extend the stay of each beneficiary who now holds this status. This box is checked if the beneficiary of the request currently has a US nonimmigrant classification and wants to extend the time he/she can stay in the US – for the same nonimmigrant classification. Again, exceptions may apply.
- Amend the stay of each beneficiary who now holds this status. This box applies if the beneficiary of the request is currently in the US as an E-2 immigrant and is notifying USCIS of a material change in the terms and conditions of employment, “training or the beneficiary’s eligibility as specified in the original approved petition.”
Other boxes for requested action apply to Free Trade Agreement issues which your immigration lawyer can explain.
Applicants seeking E-2 nonimmigrant status should write “E-2” in the classification box. In addition to the basic E-2 requirements such as a current treaty and meeting the investor or employee criteria, applicants may be required to submit evidence of:
Ownership and nationality of the E-2 treaty investor.
For E-2 employees only. “Executive or Supervisory Duties or special qualifications essential to the enterprise. Evidence of such duties or qualifications may include, but is not limited to, certificates, diplomas or transcripts, letters from employers describing job titles, duties, operators’ manuals, and the required level of education and knowledge.”
If there are substantive changes to an existing E-2 classification, approval must be obtained for those changes. Applicants can seek advice on whether the changes are indeed “substantial changes.”
Contact an experienced immigration lawyer to review when you must file an I – 129 form, how you should complete it, and what additional evidence is required.