The E-2 visa allows a national of a "treaty country" (country with which the U.S. maintains a treaty of commerce and navigation) to come to the U.S. when investing a substantial amount of capital in a U.S. business. Certain employees of such person or organization may be eligible for an E-2 visa as well.
List of Treaty Countries
Please see the following U.S. Department of State's web page: http://travel.state.gov/content/visas/english/fees/treaty.html.
Requirements for E-2
1. In order to qualify for an E-2 visa as a treaty investor:
----- You must be a national of a "treaty country" (country with which the U.S. maintains a treaty of commerce and navigation).
----- You must have invested, or be actively in the process of investing, a substantial amount of capital in a bona-fide enterprise in the U.S.
----- You must be seeking to enter the U.S. solely to develop and direct the investment enterprise. You must have at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
----- The investment enterprise must not be marginal. In other words, it must have the present or future (within 5 years) capacity to generate more than enough income to provide a minimal living for the treaty investor and his/her family.
2. An "investment" means the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.
3. A "substantial amount" means it must be substantial in relation to the total cost of either purchasing an established enterprise or establishing a new one; must be sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and must be of a magnitude 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.
4. A "bona fide enterprise" means a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. Passive investments (such as investing in real estate or stock) do NOT qualify as "investments" for E-2 purposes.
5. In order to qualify for an E-2 visa as an employee of a treaty investor, you must:
----- Be the same nationality of the treaty investor. If the principal alien 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 treaty trader status.
----- Meet the definition of “employee” under the relevant law.
----- Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications. Duties of an executive or supervisory character are those that provide the employee ultimate control and responsibility for the organization’s overall operation or a major component of it. Special qualifications are skills that make the employee’s services essential to the efficient operation of the business. Please note that knowledge of a foreign language and culture does not, by itself, constitute special qualifications. Also note that a skill that is essential at one point may become non-essential at a later date.
How to apply
1. If the treaty investor is currently in the U.S. in a lawful status, s/he can file a Form I-129, Petition for a Non-immigrant Worker, along with proper Supplements and supporting documents, with USCIS, to request a change of status to E-2. If the employee is currently in the U.S. in a lawful status, the employer can do the same to request a change of the employee's status to E-2.
2. If the treaty investor is outside the U.S., filing of Form I-129 is not necessary; instead, the treaty investor has to apply for an E-2 visa directly to the U.S. Embassy/Consulate with proper supporting documents.
3. Whenever there is any "substantive change" in the terms/conditions of E-2 status, the treaty trader or enterprise must notify USCIS by filing a new Form I-129 (and may simultaneously request an extension of stay for the treaty trader or employee). A “substantive change” means a fundamental change in the employer’s basic characteristics, such as merger, acquisition, or major event which affects the treaty trader or employee’s previously approved relationship with the organization.
Period of Stay
E-2 treaty investors and employees are allowed a maximum initial stay of 2 years. Requests for extension of stay may be granted in increments of up to 2 years each, with no maximum limit to the number of extensions. Because of this, E-2 status (and E-1 status) is considered closest to permanent residence in terms of possible length of stay in the U.S. Nevertheless, all E-2 status holders must maintain an intention to depart the U.S. when their status expires or is terminated.
Dependents
Dependents (spouse and unmarried children under 21 years of age) of E-2 treaty investors and employees are entitled to E-2 dependent visas/status. Dependents' nationalities need not be the same as the treaty trader or employee. Once a spouse of the treaty trader or employee is admitted into the U.S. as an E-2 spouse, s/he can apply for work authorization by filing a Form I-765; if approved, there is no specific restriction as to where the E-2 spouse can work.
