Spouses and the unmarried children of treaty investors and employees who currently legally in the United States can request a change in status to E-2 dependent status or an extension of a valid E-2 visa – by filing Form I-539.
Current court cases may affect the ability to file a Form I-539. Family members of E-2 investors and employees should review these cases and their rights with experienced immigration attorneys.
When do you need to file Form I-539
Applicants who are seeking a change of nonimmigrant status or an extension of their visa must seek authorization. There are strict deadlines that must be met. There are limited circumstances where a failure to file in a timely manner can be excused.
Applicants can file for themselves, their spouse, and for unmarried children under the age of 21 all in one application – “but only if you are all now in the same status or they are all in derivative status.”
Applicants must file Form I-539A for each person who seeks authorization. Fiancées’ are generally not allowed to seek nonimmigrant E-2 classification.
Extension of time/change of status requests – What documents must be submitted?
Applicants seeking a time extension or change of status to E-2 classification must complete the application, pay the filing fee, and file the documents and fee with the correct office.
The application should include the following forms in addition to the I-539 and I-539A forms:
- Form I-94 (a front and back copy) for each applicant
- Evidence of the relationship to the principal E nonimmigrant – such as marriage certificate and divorce papers
- One or more of the following”
- Form I-129
- “A copy of the I-797 Receipt Notice related to the principal E nonimmigrant’s already pending Form I-129”
- Other authorized documents your immigration lawyer can explain
The approval for spouses and dependents does not generally authorize the right to work in the US – just the right to live in the US.
Anyone who is required to have a valid passport to be admitted into the US must keep up the validity of that passport during their non-immigrant stay.
Additional Form I-539 requirements
USCIS provides form I-539 for free – though there is an application fee that must be paid when the form is submitted. In addition:
- Applications must be signed by the applicants. This means Form I-539 and Form I-539A must be signed separately. “USCIS will consider a photocopied, faxed, or scanned copy of the original, handwritten signature valid for filing purposes. The photocopy, fax, or scan must be of the original document containing the handwritten, ink.”
- The appropriate filing fee and biometric services fees must be paid when the application is filed.
- Your immigration lawyer can explain when copies are acceptable and when translations into English are required.
- All parts of the forms must be completed. There are typically about seven parts.
Biometric Services Appointment
“USCIS may require that you appear for an interview or provide biometrics (fingerprints, photograph, and/or signature) at any time to verify your identity, obtain additional information, and conduct background and security checks, including a check of criminal history records maintained by the Federal Bureau of Investigation (FBI), before making a decision on your application or petition.”
USCIC will advise applicants whether a biometric services appointment is required after the application is filed. Applicants will be informed which office to go to if they are in the US or overseas. Applicants who are required to complete a biometric services appointment will need to sign oaths the that information in the application is accurate.
Contact an experienced immigration lawyer to review when you must complete an I-539 and/or I-539A form, how you should complete it, and what additional information/documentation is required.
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Treaty investors and their employees who are approved for E-2 nonimmigrant status are subject to certain terms and conditions in order to enter and stay in the United Sates. If these terms and conditions are violated, the investor or employee may be forced to leave the country.
The core requirements for being in the United States based on an E-2 visa are set forth in the Code of Federal Regulations – 8 CFR 214.2(e)(8)
Limitations on employment
A service officer will determine the terms and conditions the treaty investor, employee, or family member must follow – at either the time of admission or the time the request to change a different nonimmigrant status to E status is approved. A service officer means:
- U.S. Citizenship and Immigration Services
- U.S. Customs and Border Protection
- U.S. Immigration and Customs Enforcement
A treaty investor or treaty employee “may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status.”
Subsidiary employment
In addition to performing work for the “parent treaty organization or enterprise,” an employee may also do work for a subsidiary of those entities. Doing work for a subsidiary of either a “common” parent organization or a “common” parent enterprise – should not be considered as constituting a “substantive change” to the terms and conditions of the original E treaty – provided – “if, at the time the E-2 treaty status was determined, the applicant presented evidence establishing:
- The organization or enterprise, or any subsidiaries of the organization or enterprise where the work is to be done
- The required parent-subsidiary relationship and
- That the subsidiary independently qualifies as a treaty organization or enterprise
If the worker is an employee of a treaty investor – then the work must still require executive or supervisory authority or special qualifications. The work to be performed must be “consistent with the terms and conditions of the activity forming the basis of the classification.”
Non-substantive changes to E-2 nonimmigrant status
If there is no substantive (or fundamental) change to the terms or conditions of the foreign persons’ employment which would affect his/eligibility for E classification – then there is no requirement to file a new Form I-129. “Prior approval is not required if corporate changes occur which do not affect the previously approved employment relationship, or are otherwise non-substantive.”
The alien must, however, to facilitate admission do one of the following:
- “Present a letter from the treaty-qualifying company through which the alien attained E classification explaining the nature of the change”
- “Request a new Form I-797, Approval Notice, reflecting the non-substantive change by filing Form I-129, with fee, and a complete description of the change”
- “Apply directly to Department of State for a new E visa reflecting the change.
Foreigners who don’t establish their credentials for subsidiary employment may also be able to demonstrate “to the satisfaction of the immigration officer at the port-of-entry in some other manner, his or her admissibility under section 101(a)(15)(E) of the Act.“
Contact an experienced immigrant lawyer to review whether you or an employee can continue working in the US if you/the employee works for a subsidiary.
Employees of qualified treaty investors can apply for an E-2 visa if they can show they are needed due to either:
- The executive and supervisory character of their work, or
- They have special qualifications
These employee skills are legal terms of art that are set forth in the Code of Federal Regulations – 8 CFR § 214.2 Sections 17 and 18
Executive and supervisory character
The US government wants to make sure that employees aren’t being brought over to replace American workers. The employees should be people who have unique abilities to manage the job – to benefit American workers who are on the job, the success of the project, and the success of the business in helping American communities.
The core requirements for showing that the employee seeking the E-2 visa will be working in an executive or supervisory character are that the employee should have “ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.”
A service officer will determine if the employee qualifies as an executive or supervisor. A service officer generally means “U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and/or U.S. Immigration and Customs Enforcement.” The service officer will make his/her decision based on the following criteria:
- The executive has “great authority to determine the policy of, and the direction for, the enterprise”
- A supervisory position “provides the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees”
- The following additional criteria will be reviewed:
- “Whether the applicant possesses executive and supervisory skills and experience”
- “A salary and position title commensurate with executive or supervisory employment”
- “Recognition or indicia of the position as one of authority and responsibility in the overall organizational structure”
- “Responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory personnel”
- “If the position requires some routine work usually performed by a staff employee, such functions may only be of an incidental nature”
Special qualifications
The service officer will examine whether the employee who isn’t an executive or supervisor has the special skills and abilities that are “essential to the successful or efficient operation of the treaty enterprise.”
The service officer will examine the following criteria in determining whether special qualifications apply:
- “The degree of proven expertise of the alien in the area of operations involved”
- Whether other workers have the same set of skills and abilities
- Whether American workers have the same skills and qualifications
- How long the applicant has worked in the field and what training he/she has
- What training and experience is required to do the job
- “The relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command”
Applicants should understand that just knowing a foreign language or culture is not enough to meet the special qualifications test.
The service officer, in assessing the special qualifications of an employee may consider the whole picture
- “A skill that is essential at one point in time may become commonplace at a later date”
- “Skills that are needed to start up an enterprise may no longer be essential after initial operations are complete and running smoothly”
- “Some skills are essential only in the short-term for the training of locally hired employees
The service officer will also examine the length of time the skills are needed. In some cases, the worker may be needed long-term. In other cases, the employee may only be needed for certain tasks – when those tasks are completed, the worker will be expected to leave the United States. “The service officer will likely seek evidence of the time needed for completion of the project or the time to replace the worker.”
A few representative cases
Two cases illustrate the fine line between being approved and not being approved – as an employee with “responsible authority.”
- “Matter of Udagawa , 14 I&N Dec. 578 (BIA 1974). Applicant for admission who will supervise and train American workers as tempura cooks at a Japanese restaurant and assist in the preparation of meals during the training period is inadmissible as an employee of a treaty investor because he will not be employed in a “responsible capacity” with the meaning of 22 CFR 41.51.”
- “Matter of Nago , 16 I&N Dec. 446 (BIA 1978). Where the applicant for admission is a highly trained chef who is engaged in a specialized form of Japanese cooking (Nabemono) and has been brought to the U.S. to impart his knowledge, the BIA concluded that the applicant is employed by a treaty investor in a responsible capacity and therefore qualifies as an E-2 nonimmigrant.”
Contact an experienced immigration lawyer to review whether you or an employee meets the executive, supervisory, or special qualifications test.
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.”
Requested Action
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.
Substantial investment.
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.
The following countries have E-2 treaty status with the United States. Some changes may apply since some countries may be added or deleted from the list over time. Some of the effective dates date back to the 1800s.
| Country | Effective Date | |
|---|---|---|
| 1. | Albania | January 4, 1998 |
| 2. | Argentina | October 20, 1994 |
| 3. | Armenia | March 29, 1996 |
| 4. | Australia | December 27, 1991 |
| 5. | Austria | May 27, 1931 |
| 6. | Azerbaijan | August 2, 2001 |
| 7. | Bahrain | May 30, 2001 |
| 8. | Bangladesh | July 25, 1989 |
| 9. | Belgium | October 3, 1963 |
| 10. | Bolivia | June 6, 2001 |
| 11. | Bosnia and Herzegovina | November 15, 1882 |
| 12. | Bulgaria | June 2, 1994 |
| 13. | Cameroon | April 6, 1989 |
| 14. | Canada | January 1, 1993 |
| 15. | Chile | January 1, 2004 |
| 16. | China (Taiwan) | November 30, 1948 |
| 17. | Colombia | June 10, 1848 |
| 18. | Congo (Brazzaville) | August 13, 1994 |
| 19. | Congo (Kinshasa) | July 28, 1989 |
| 20. | Costa Rica | May 26, 1852 |
| 21. | Croatia | November 15, 1882 |
| 22. | Czech Republic | January 1, 1993 |
| 23. | Denmark | December 10, 2008 |
| 24. | Ecuador | May 11, 1997 |
| 25. | Egypt | June 27, 1992 |
| 26. | Estonia | February 16, 1997 |
| 27. | Ethiopia | October 8, 1953 |
| 28. | Finland | December 1, 1992 |
| 29. | France | December 21, 1960 |
| 30. | Georgia | August 17, 1997 |
| 31. | Germany | July 14, 1956 |
| 32. | Grenada | March 3, 1989 |
| 33. | Honduras | July 19, 1928 |
| 34. | Ireland | November 18, 1992 |
| 35. | Israel | May 1, 2019 |
| 36. | Italy | July 26, 1949 |
| 37. | Jamaica | March 7, 1997 |
| 38. | Japan | October 30, 1953 |
| 39. | Jordan | December 17, 2001 |
| 40. | Kazakhstan | January 12, 1994 |
| Country | Effective Date | |
|---|---|---|
| 41. | Korea (South) | November 7, 1957 |
| 42. | Kosovo | November 15, 1882 |
| 43. | Kyrgyzstan | January 12, 1994 |
| 44. | Latvia | December 26, 1996 |
| 45. | Liberia | November 21, 1939 |
| 46. | Lithuania | November 22, 2001 |
| 47. | Luxembourg | March 28, 1963 |
| 48. | Macedonia | November 15, 1882 |
| 49. | Mexico | January 1, 1994 |
| 50. | Moldova | November 25, 1994 |
| 51. | Mongolia | January 1, 1997 |
| 52. | Montenegro | November 15, 1882 |
| 53. | Morocco | May 29, 1991 |
| 54. | Netherlands | December 5, 1957 |
| 55. | New Zealand | June 10, 2019 |
| 56. | Norway | January 18, 1928 |
| 57. | Oman | June 11, 1960 |
| 58. | Pakistan | February 12, 1961 |
| 59. | Panama | May 30, 1991 |
| 60. | Paraguay | March 07, 1860 |
| 61. | Philippines | September 6, 1955 |
| 62. | Poland | August 6, 1994 |
| 63. | Romania | January 15, 1994 |
| 64. | Senegal | October 25, 1990 |
| 65. | Serbia | November 15,1882 |
| 66. | Singapore | January 1, 2004 |
| 67. | Slovak Republic | January 1, 1993 |
| 68. | Slovenia | November 15, 1882 |
| 69. | Spain | April 14, 1903 |
| 70. | Sri Lanka | May 1, 1993 |
| 71. | Suriname | February 10, 1963 |
| 72. | Sweden | February 20, 1992 |
| 73. | Switzerland | November 08, 1855 |
| 74. | Thailand | June 8, 1968 |
| 75. | Togo | February 5, 1967 |
| 76. | Trinidad & Tobago | December 26, 1996 |
| 77. | Tunisia | February 7, 1993 |
| 78. | Turkey | May 18, 1990 |
| 79. | Ukraine | November 16, 1996 |
| 80. | United Kingdom | July 03, 1815 |
| 81. | Yugoslavia | November 15, 1882 |
Notably missing from the E-2 treaty list are Russia, China, Brazil, and India.
Country Specific Notes
China (Taiwan): The agreement/treaty is managed on a “nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan.”
Czech Republic and Slovak Republic: The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992. It becomes valid for the Czech Republic and Slovak Republic as separate states on January 01, 1993.
Denmark: The Treaty does not apply to Greenland
France: The Treaty “applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion.”
Japan: The Treaty which was originally effective on October 30, 1953 now includes the Bonin Islands (effective June 26, 2968) and the Ryukyu Islands (effective May 15,1972).
The Netherlands: This Treaty now applies to Aruba and Netherland Antilles.
Norway: The Treaty does not apply to Svalbard (Spitzbergen and certain lesser islands).
Spain: The Treaty dates back to April 14, 1903. It applies to all territories.
Suriname: “The Treaty with the Netherlands which entered into force December 05, 1957, was made applicable to Suriname on February 10, 1963.”
The United Kingdom: The are some conditions which an experienced immigration attorney can explain. For example, to qualify as a treaty investor or treaty trader, “the alien must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty.”
Yugoslavia: The view of the United states is that essentially the former republic of Yugoslavia does not exist. The US view is also that the successor countries continue to be bound by the original treaty. These successor countries are Bosnia and Herzegovina, Croatia, the Republic of Macedonia, Slovenia, Montenegro, Serbia, and Kosovo.
Some additional conditions apply for E-3 visas for nationals of the Commonwealth of Australia. There are also unique conditions for Bolivian nationals and Ecuadorian nationals that a skilled immigration lawyer can explain.
Introduction
E-2 visas are good for people who want to invest and work in the United States. According to the United States Citizenship and Immigration Services (USCIS), a national of a country that has a treaty of commerce and navigation with the United States can be admitted to America if they are investing a “substantial amount of capital in a US business.” The investor must apply for an E-2 nonimmigrant classification.
If the investor is an individual, organization or company, then certain employees of the employer may also have the right to file for an E-2 classification. The spouses and children under age 21 of the investor or the employees of the investor may also be eligible to apply for E-2 classification.
The E-2 visa is for nonimmigrants. It’s a temporary visa unlike green cards which are permanent.
How to obtain an E-2 classification if the investor or employee is currently in the United States?
If the treaty investor currently resides in the US in a lawful nonimmigrant status, then the investor can file Form I-129 to request that their status be changed to an E-2 classification. The same logic applies to someone who is an employee of the investor. Employees in the US with a lawful nonimmigrant status can also use Form I-129 to request a change to E-2 Classification.
How to obtain an E-2 classification if the investor or employee is NOT currently in the United States?
Form I-129 cannot be used for foreign nationals who are not currently in the United States. These applicants generally need to consult with the US Department of State or an experienced immigration lawyer. Once a visa has been approved, the applicant can then “apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant.”
What are the core requirements for E-2 classification as a treaty investors?
The core requirements for E-2 approval as a treaty investor are:
- The investor must be a national of a nation that has a commerce and navigation treaty with the US
- The investor must be in the process of investing or already has invested a “substantial amount of capital” in a “bona fide US enterprise”
- The investor must want to enter the US for the sole purpose of directing and developing the investment. In order to prove this point, the investor may have at least 50% ownership in the enterprise or must have operational control of the enterprise through a “managerial position or other corporate device.”
- 0 Investment is the assignment of funds, assets, or other capital in a commercial enterprise with the aim of creating a profit. The placement of the capital must generally include some element of risk. There must be a risk of full or partial failure if the commercial enterprise fails. The treaty investor cannot use any funds that were acquired, directly or indirectly through criminal actions.
Investors can be individuals or business organizations.
What are the core requirements for E-2 classification as an employee of a treaty investors?
The basic tests for E-2 approval for the employees of the treaty investor are:
- The employee must be a national from the same country as the foreign employer. The main foreign employer, in turn, must be a national in a treaty country
- The applicant must be an employee. Generally, employees work at the control and direction of their employer – as opposed to independent contractors who work on their own schedules and timeframes.
- The employee should be a supervisor, executive, or someone with unique qualifications. Executive and supervisory duties are those which give the employee “ultimate control and responsibility for the organization’s overall operation, or a major part of it.”
Special qualifications are generally skills which are essential to smooth operation of the business. Some of these skills include, according to the UCSIS:
- “The degree of proven expertise in the employee’s area of operations”
- Whether other workers in the enterprise possess the same skills
- The salary being paid to the worker because of his/her unique skills
- Whether the employer could find similarly skilled workers from the existing US workforce
Understanding a foreign language or culture is not enough, on its own, to meet the special qualifications requirement. Essential skills may become nonessential skills as the project develops.
If the main employer is an enterprise or organization, then that enterprise/organization must have 50% or more ownership by people in the US who “have the nationality of the treaty country.” These owners must be keeping “nonimmigrant treaty investor status.” Owners outside the US must be “classifiable as nonimmigrant treaty investors” if they want US admission. 8 CFR 214.2(e)(3)(ii).
How long does an E-2 nonimmigrant visa last?
Employees of treaty investors and the treaty investors themselves can stay in the United States for up to two years. Extensions to stay longer may be granted, usually in increments, for up to another two years for each extension request. There is no cap on the number of extensions that can be requested for E-2 nonimmigration visas. The key issue for employees and investors is that they must make clear they do intend to leave the United Sates whenever their E-2 status ends.
Generally, an E-2 nonimmigrant does not need to file another Form I-129 with the USCIS if the employer travels abroad. E-2 nonimmigrants who travel outside the US “may generally be granted an automatic two-year period of readmission when returning to the United States.”
How is substantial amount of capital defined?
The term “substantial amount of capital” refers to:
- The relationship to the cost of a new venture or the purchase of an existing commercial enterprise.
- A strong commitment by the treaty investor in the success of the commercial venture or 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.”
There is no minimal dollar amount. The investor’s contribution, control, risks, and likelihood of success are reviewed as a whole. In general, the goal of the enterprise should be to created jobs for US workers.
The applicant must intend to leave the US when the enterprise is completed
The enterprise must be substantial in that it should have the current capacity or a future capacity to provide a good income for the treaty investor and his/her family. It helps for approval purposes if the investment will also lead to jobs for US citizens. Generally, the time frame for producing a good income should be within five years from the time the E-2 classification for the treat investor begins. 8 CFR 214.2(e)(15).
In one older case, Matter of Lee, 15 I&N Dec. 187 (Regional Commissioner 1975), E-2 status was denied where the investment was small, $10,000) and the investor claimed that some unspecified date in the future he would increase the investment to more than 51%. The investment was deemed to be a “”small amount of capital in a marginal enterprise solely for the purpose of earning a living” contrary to the provisions of 22 CFR 41.51.
What is a Bona Fide Enterprise?
“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.”
What are the Conditions for Staying in the United States Based on an E-2 Nonimmigrant Visa?
Treaty investors and employees are subject to the following restrictions when they are granted E-2 nonimmigrant status:
- They can only work in the enterprise/activity for which they were approved when their classification status was accepted. E-2 employees 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
- Subsidiary employment requires executive, supervisory, or essential skills
- E-2 Terms and conditions of employment have not otherwise changed.”
What Happens if There’s a Substantive Change to the E-2 Status?
The United States Citizenship and Immigration Services must authorize any “substantive changes” to the E-2 status terms and conditions. A ‘substantive change’ is defined as “a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.”
If a substantive change exists, the treaty investor or entity must inform the USCIS by filing a new form I-129 with the appropriate fee. They may “simultaneously request an extension of stay for the treaty investor or affected employee.” “The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification.”
A new form I-120 is not required to inform the USCIS about changes that are NOT substantive changes. The treaty investor or organization does have the right to ask the USCIS whether any changes are substantive or non-substantive. This request does require that the treaty investor or enterprise file Form I-129 – describing the change and with payment of the appropriate fee.
E-2 status based on treaty investors from Canada and Mexico
Treaty investors and employees of treaty investors based on a Canadian or Mexican treaty may be affected, in their ability to obtain an E-2 nonimmigrant visa, if there is a strike or labor dispute involving the stoppage of work – “at the intended place of employment.”
What are the Requirements from the Spouses and Children of E-2 Treaty Investors and the Employees of the Treaty Investors?
Spouses and the unmarried children of treaty investors and employees can also seek the right to stay in the United States while the investor or employee is also in the country. Children must be under 21-years-of age. The spouses and unmarried children need to obtain E-2 nonimmigrant status. Their status will only be granted form the same period of time granted to the treaty investor or the employee of the treaty investor.
If the family member is currently legally in the US, they can seek a change of status or an extension of E-2 dependent status – by filing a Form I-539 with the appropriate fee.
The nationality of the spouse and/or child does not have to be the same as that of the treaty investor or employee.
Spouses of E-2 approved workers can also apply for “work authorization by filing Form I-765 with the appropriate fee. “If approved, there is no specific restriction as to where the E-2 spouse may work.”
Family members need to be careful to note the length of time the investor or employee has been granted E-2 status. They must apply for any extensions just as the treaty investor or employee must also file for extensions.
In addition, if the treaty investor of employee travels abroad, then, “unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.” In other words, it’s more practical for the family member (spouse or unmarried child) to travel with the treaty investor or employee instead of staying back in the United States.
Summary of E-2 treaty investment visas
The United States of America does want to encourage investors in the American economy. For that reason, they do encourage foreign investors to apply for E-2 nonimmigrant visas so the investor, the employees of the investors, and the families of the investors and employees can invest in American projects and see those projects through to completion.
There are specific form requirements, specific eligibility requirements, and specific conditions for obtaining an E-2 visa starting with – there must be an approved treaty between American and the country where the foreign investor lives.
Speak with a Strong Immigration Advocate Today
If you are an investor or you know someone who is interested in investing in American businesses, the Herman Legal Group has the experience and resources to help explain your options and help you process your E-2 applications to maximize your chances of admission into the US. We’ve been helping immigrants and families across the globe for decades. Our immigration lawyers are based in Ohio and other locations throughout America. Our immigration lawyers speak many different languages and understand many different cultures.