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.
