The E-2 visa, also known as the Treaty Investor visa, offers a good option for entrepreneurs and investors from treaty countries to live and work in the United States as well as their employees.
Understanding the E-2 Visa
The E-2 visa allows foreign nationals from treaty countries to invest in and manage a business in the United States. To qualify, applicants must make a substantial investment in a U.S. enterprise and actively participate in its operation. The visa is initially granted for up to two years but can be renewed indefinitely, provided the business continues to meet the requirements.
Eligibility Requirements For A Treaty Investor
- Treaty Country Nationality: The applicant must be a national of a country that has a treaty of commerce and navigation with the U.S. A list of eligible countries can be found on the U.S. Department of State’s website.
- Substantial Investment: The investment must be substantial enough to ensure the successful operation of the business.
- Real and Operating Business: The business must be a legitimate, operating enterprise and not merely a marginal enterprise. It should have the capacity to generate enough income to support the investor and their family.
- Control and Ownership: The investor must own at least 50% of the business or hold operational control through a managerial role.
- Intention to Develop and Direct: The investor must demonstrate their intention to develop and direct the business. This involves actively participating in the day-to-day operations and making key business decisions.
Eligibility Requirements of An Employee of a Treaty Investor
- Nationality: Share the nationality of the principal alien employer, who must be from the treaty country.
- Employee: Meet the legal definition of “employee.”
- Skills: Perform executive or supervisory duties, involving ultimate control over the enterprise or a major part of it. OR Have special qualifications, which include proven expertise, unique skills not available in the U.S., and a high salary.
If the principal employer is not an individual, it must be an enterprise at least 50% owned by U.S. persons with the treaty country nationality. These owners must either: (a) Have nonimmigrant treaty investor status, or (b) Be classifiable as nonimmigrant treaty investors if seeking admission.
Required Documents if applying outside of the United States
- Petition Letter: Describe the company and business, addressing E-2 eligibility: investment status, enterprise operation, substantial and non-marginal investment, and applicant’s role or essential skills. Add a statement of intent to leave the U.S. after E-2 status ends.
- Administrative Documents: DS-160 confirmation page, completed Form DS-156E, previous E-2 visa (if applicable), approved Form I-797 for status changes (if applicable), and Form G-28 if using an attorney.
- Company Structure and Ownership: Provide proof of at least 50% treaty country ownership, organizational chart, and legal documents (e.g., incorporation documents, stock certificates); Passports of investors and ownership statements. For foreign companies, provide an ownership chart and certificate of existence.
- Proof of Investment: Show evidence of investment (contracts, leases), source of funds, and proof of transfer to the U.S., bank statements, and financial statements of parent companies.
- Proof of Enterprise Operation: Provide evidence that the enterprise is operational or will open soon (business licenses, permits, utility bills), financial projections and a five-year business plan.
- Applicant’s Qualifications: Submit a resume with relevant experience, a company organizational chart showing the applicant’s role, and evidence of the applicant’s executive or essential skills. Explain reasons for employees’ needs if U.S. workers were not available.
Make sure to visit the Department of State website for specific documents depending on your country of citizenship.
Important Considerations
- Renewal and Duration: The E-2 visa is initially valid for up to two years and can be renewed indefinitely as long as the business remains operational and meets the visa requirements.
- Family Members: Spouses and unmarried children under 21 may accompany the E-2 visa holder. Spouses can apply for work authorization.
- Change of Status: Available for people already in the U.S.. with a legal status filing a form I-129.
FAQ
- What if my investment is less than $100,000? While higher investments are generally favored, lower amounts may be acceptable if they are sufficient for the business’s success.
- Can I apply for a green card with an E-2 visa? The E-2 visa is a non-dual intent visa but you might want to seek the services of an attorney to work around the most suitable strategy.
- What if my business fails? If the business ceases operations, the E-2 visa status may be jeopardized, and you will need to leave the U.S.
If you are considering applying for an E-2 visa and need guidance, reach out to Donald Gross for a Free 30-minute consultation.