Nonimmigrant Waivers: Canadian E-Visa Applicants

Citizens of Canada are visa-exempt, meaning that they do not require a nonimmigrant visa when traveling to the United States. There are very few categories where a Canadian citizen will be required to obtain a nonimmigrant visa for temporary travel to the US.

Canadians seeking to enter the US to engage in trade or investment are required to obtain what is called an “E-visa.” E-visas are categorized into two main purposes: Treaty Trader (E-1) and Treaty Investor (E-2), and are available for citizens of select Treaty Countries. In order to fall into one of these categories, the US Department of State provides that you must be coming to the United States to:

• Engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the US and the treaty country; or
• Develop and direct the operations of an enterprise in which you have invested a substantial amount of capital.

Some examples of types of enterprises that constitute trade under E visa provisions include international banking, insurance, transportation, tourism, and communications.

Citizens of Canada who are applying for an E-visa but are otherwise inadmissible to the US must obtain both a visa and waiver of inadmissibility. When filing, an applicant must submit both the e-visa application and Form I-192, for advanced permission to enter the US as a nonimmigrant, at a US consulate.

Although there is no specific format required, a visa applicant must note within his or her application of the applicable ground of inadmissibility and documentation of eligibility for a waiver.

Next, the applicant must attend his or her visa interview, where the consular officer will determine whether the applicant qualifies for the e-visa but for his or her ground of inadmissibility. After this determination, the consular officer will then submit the Form I-192 to the Admissibility Review Office (“ARO”), and in favorable circumstances, will submit an initial recommendation of approval.

It is important that e-visa applicants subject to inadmissibility file the application and waiver request as early as possible prior to planned travel or intended business: the processing time between the moment the consular officer submits the I-192 recommendation, the ARO’s adjudication and approval of a waiver, and the final issuance of such visa and waiver may take weeks to months. Ultimately, this “waiting period” may affect the trader’s or investor’s business in the US.

Lastly, e-visa holders must keep in mind that their US admittance is only permissible for the time period stated on the waiver. Waivers are generally issued for a period of one year, with the maximum validity period of five years.

This means that, after the five-year period has lapsed, e-visa holders must return to his or her home country and submit a subsequent waiver application in order to again enter the US to conduct business. This process may become tricky or confusing for some.

In order to avoid falling out of admissible status and violating any US immigration laws, speak to an experienced immigration attorney to assist with your visa application and waiver form.

How to Complete Form I-539

E-2 Terms and Conditions – Substantive Changes

The United States Citizenship and Immigration Services (USCIS) must approve any “substantive changes’ to an E-2 approval of nonimmigrant status. Substantive changes must be approved by filing a Form I-129. The form should be filed by the treaty investor or treaty organization. The requirements for seeking approval of substantive changes are detailed in the Code of Federal Regulations – 8 CFR 214.2(e)(8)

Substantive Changes

The approval request for a substantive change to E-2 status is determined by a service professional. Service officers include “U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and/or U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears.”

A treaty alien must file a new application on Form I-129 and E supplement, requesting an extension of their stay in America. For Form 1-129 applications, the applicant must submit evidence supporting his/her eligibility for E classification based on the substantive changes.

Another way to seek E-2 status based on substantive changes is to obtain a visa from a consular officer – which indicates the new terms and conditions for staying in America. The applicant must also apply for “admission at a point-of-entry.”

A substantive change occurs “where there has been a fundamental change in the employing entity’s basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed.” If the employee is working for a subsidiary of a parent investor or organization or enterprise, then that subsidiary work may be considered non-substantive.

Advice About Whether New Work is a Substantive Change

It can be confusing to understand whether there is a substantive change. The foreign applicant may file Form I-129, along with the required fee, and a full description of the change – and then request advice as to whether the change is substantive or non-substantive.

Where there are multiple employees, an alien “may request that USCIS determine if a merger or other corporate restructuring requires the filing of separate applications – or whether one I-129 form can be filed (provided the form includes a list of the “related receipt numbers for the employees involved and an explanation of the change or changes.”

Approval of Changes to E-2 Employment Terms and Conditions

If the application for new E-2 classification is approved, the service professional should inform the applicant through Form I-797 that:

• “An extension of stay in nonimmigrant E classification may be granted for the validity of the approved application”
• The right of the applicant to employment in the US is authorized only for the time the applicant stays in the United States.

If the applicant leaves the US, readmission may be approved “where the alien presents his or her unexpired E visa together with the Form I-797, Approval Notice, indicating Service approval of a change of employer or of a change in the substantive terms or conditions of treaty status or employment in E classification, or, in accordance with 22 CFR 41.112(d), where the alien is applying for readmission after an absence not exceeding 30 days solely in contiguous territory.”

If a change in employment is not authorized that will “constitute a failure to maintain status.”

Contact an experienced immigration lawyer to discuss how you determine if a change in status is substantive and what you or a foreign applicant must do to be authorized to continue to work in the United States.

E-2 Terms and Conditions – Limitations, Subsidiary Employment

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.

E-2 Visas: Executive and Supervisory Character / Special Qualifications

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.

Instructions for Form I-129: Petition for a Non-immigrant Worker

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.

E-2 Treaty Countries and Notable Criteria

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.

Ultimate Guide to E-2 Treaty Investor Visas

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.

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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.

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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.”

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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.

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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).

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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.”

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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.

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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.”

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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.”

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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.

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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.”

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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.

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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.

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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.

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