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E-2 Treaty Investor

The E-2 Treaty Investor visa category allows individual investors to enter and work inside the U.S. by investing substantial funds in setting up a new business or purchasing an existing business. Certain employees of such a person or of a qualifying organization may also be eligible.

To qualify for E-2 classification, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation (see below).
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S. The investment must be a real operating commercial entity or entrepreneurial undertaking. A paper organization, speculative or idle investment such as undeveloped land does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• Be seeking to enter the U.S. solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise, or possession of operational control through a managerial position.
• The business enterprise must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
• The investor must have control of the funds, and the investment must be at risk of being lost due to the business or enterprise being unsuccessful. Loans secured with the assets of the investment enterprise are not allowed.
• The investor must be coming to the U.S. to develop and direct the enterprise. If not the principal investor, the applicant must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

 

Treaty Countries

The investor must be a national of (partial list follows, the link for complete list is below): Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, Colombia, Costa Rica, Czech Republic, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Israel, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Republic of Congo, Romania, Senegal, Singapore, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia [Bosnia and Herzegovina, Croatia, the Republic of Macedonia, Slovenia, Montenegro, Serbia, and Kosovo].

The investor does not do have to be currently residing in a treaty country as long as citizenship is from a treaty country.

 

Investment Amount and evidence of investment

What investment amount is considered sufficient to ensure the successful operation of the enterprise? The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise. We recommend investments of at least $100,000-$200,000.

Some evidence useful in showing substantial investment is related bank statements, inventory or stock list of goods and materials purchased for the business enterprise, and financial statements. A business plan is helpful.

 

How Can An Employee Qualify?

In order for an employee of an E-2 investor to apply for this visa, the employee must be a citizen of the same treaty country that the principal E-2 investor maintains citizenship. The principal E-2 investor must show that the employee is necessary for the fulfillment of the business enterprise. This is easily proven if the employee is a manager or executive. Alternatively, the employee can qualify based on specialized knowledge, making him or her instrumental to the operation or development of the business.

If the principal employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the U.S. who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty investor status. If the owners are not in the U.S., they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.

 

Change of status versus visa

If the treaty investor is currently in the U.S. in a lawful nonimmigrant status, he or she may file a petition with the USCIS to request a change of status to E-2 classification. If the desired employee is currently in the U.S. in a lawful nonimmigrant status, the qualifying employer may file a petition with the USCIS on the employee’s behalf.

To obtain E-2 classification outside the U.S., a request for E-2 visa is made at a U.S. Consulate, generally in the applicant’s home country or country or permanent residence. E-2 status is granted upon admission to the U.S. with the E-2 visa.

 

Family and Periods of Stay

The E-2 visa category includes the applicant’s spouse and unmarried children under 21. The spouse may apply for an Employment Authorization Document (EAD), which allows unrestricted employment in the U.S. during the validity period. The family members can be nationals of any country.

E-2 treaty investors and employees and eligible accompanying family members receive multiple-entry visas valid for up to two years, with an unlimited number of two-year extensions possible. If the E-2 visa holder travels abroad, he or she will generally automatically receive a two-year extension on re-entry to the country. However, this does not apply to family members, who should apply for two year extensions on a timely basis. An exception is when the family members are accompanying the E-2 treaty investor or employee at the time the investor or employee seeks readmission to the U.S.

There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted, but there must be intention to depart the U.S. when status expires or is terminated.

 

Evidence that may be submitted to demonstrate a bona fide business includes:

• Incorporation documents or partnership deed, Notice of assignment of an Employer Identification Number from the Internal Revenue Service (IRS), and Purchase Agreement for an established business, if applicable
• Lease or sublease for office or warehouse space
• Quarterly payroll statements or alternate evidence of employees such as wage summaries (ex: Form W-2)
• Tax returns, financial and bank statements
• Sales/purchase invoices (an assorted sample is fine) or sample customer/vendor agreements
• Brochure or profile or printout of company website or other description of company
• Business organizational chart
• Business plan
• Business or any government licenses required to operate as a business, if applicable
• Utility bills, and advertisements or other promotional activities
• Letterhead

 

Please contact our immigration law firm for additional discussion of this category and alternative options.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]