E-2 VISA
GENERAL
The E-2 treaty investor nonimmigrant US visa[1] permits a citizen of a treaty country, with which the United States maintains a treaty of commerce and navigation,[2] to come to the United States with substantial capital investment in a U.S. business.
A treaty investor’s spouses and unmarried children under the age of 21 are eligible for E-2 dependent visas and their nationalities need not be the same as the treaty investor.
VISA REQUIREMENTS
To qualify for an E-2 visa, an applicant must meet the following criteria:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation;
- Have invested, or be actively in the process of investing, a substantial amount of capital; and
- Be seeking to enter the United States solely to develop and direct the investment treaty enterprise, which can be shown by at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate devices.
An applicant must, whether an individual or business, have the nationality of the treaty country; the nationality of a business is determined by the nationality of the individual owners of that business.
Because the nature of an E-2 visa is nonimmigrant, the applicant needs to show that he or she intends to depart the United States at the end of his or her authorized stay and not to stay in the United States to adjust status or otherwise remain in the United States.
Further, the applicant is in a position to develop and direct the enterprise.
TREATY ENTERPRISE
- BONA FIDE ENTERPRISE
A qualifying treaty enterprise must be a bona fide enterprise in the United States—a real, active, and operating business for profit.
- SUBSTANTIAL INVESTMENT WITH FUNDS OF LAWFUL SOURCE
There is no set dollar amount for the substantial investment requirement. Instead, the proportionality test is applied to determine whether an investment is substantial by weighing the invested funds versus the cost of the treaty business. Generally, the nature of the business decides. If an investment can fully cover the total cost of the business, it is usually considered substantial. Sometimes an investment of only a small amount of money might meet the requirement.
In addition, the source of funds for investment must be legitimate and may include capital assets or funds from savings, gifts, inheritance, contest winnings, loans collateralized by the applicant’s personal assets, or any other lawful sources.
- CAPITAL AT RISK
The treaty enterprise capital funds must be at risk for a financial return or profit.
- NOT MARGINAL ENTERPRISE
The treaty enterprise should generate sufficient income to provide the applicant and his or her family with more than minimal means of living. If a new enterprise currently cannot generate such enough income, it should be capable of doing so within five years after the enterprise starts.
- EMPLOYEES OF ENTERPRISE
An executive or supervisory or essential employee of a treaty business and the spouses and unmarried children under 21 of the employee may also be eligible for an E-2 visa. To qualify for an E-2 visa, the employee with matching duties must be of the same nationality as the principal alien employer from a treaty country and satisfy pertinent laws regarding the definition of “employee.”
VISA DURATIONS
A maximum initial stay for qualifying investors and employees is two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. And there is no limit to the number of extensions that an E-2 nonimmigrant may be granted so long as the nonimmigrant remains an intention to depart the United States at the expiration or termination of his or her status.
An E-2 nonimmigrant may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States.
APPLICATION PROCESS
An E-2 visa applicant may apply for the visa at a U.S. consulate or embassy by submitting online Forms DS-160 and DS-156E. Keep in mind that an initial E-2 application for a new business should have a formal business plan.
An applicant may file a change of status to E-2 with USCIS if he or she is in the United States in another lawful status. However, only the DOS can issue a visa, while USCIS can only change and extend the person’s status while in the United States. If a change of status to E-2 is granted by USCIS, the individual will still need to process a visa at a consulate or embassy once he or she leaves the United States to obtain an E-2 visa upon which he or she can re-enter the United States. If USCIS and DOS disagree on the subject, the E-2 applicant can be stuck outside of the United States with no way to manage his or her business or personal affairs.
Footnotes:
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[1] The major source of information about this blog is USCIS official website uscis.gov.
[2] The treaty countries include countries such as Argentina, Australia, Belgium, Canada, Germany, Japan, and South Korea. For a current list of countries with which the United States maintains a treaty of commerce and navigation, please see Treaty Countries (state.gov).
DISCLAIMER:
This blog does not, and is not intended to, constitute legal advice; instead, it is for general informational purposes only. The information presented in this blog may not reflect the most up-to-date legal developments and is subject to change at any point in time. The information presented in this blog does not create an attorney-client relationship. Readers of this blog should contact their attorney to obtain advice regarding any particular legal matter. No readers should act or refrain from acting based on the information presented in this blog without first seeking legal advice from counsel in the relevant jurisdiction. No representations are made that this blog is error-free. Altaffer & Chen PLLC expressly disclaims all liabilities arising from any actions taken or refrained from based on the information presented in this blog.
10/12/202
