E-2 Visa – Treaty Investors and Employees

The E-2 visa category is useful for entrepreneurs, managers, and employees who need to live in the United States to oversee a major investment. The E-2 classification is authorized for citizens of a country with which the United States has a commercial treaty and who are coming to the U.S. solely to direct and develop the operations of an enterprise in which they have invested, or are actively involved in the process of investing, a substantial amount of capital. The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.

Eligibility Criteria for an E-2 Visa

In order to be eligible for this classification, the E-2 visa applicant must demonstrate the following:

• You are a national of a country with whom the U.S. has the requisite treaty or agreement;
• You (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise. You must demonstrate that you control the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device, or by other means;
• You have invested in or are actively in the process of investing in the enterprise;
• The investment is substantial, i.e. sufficient to ensure your financial commitment to the successful operation of the enterprise and big enough to support the likelihood that you will successfully direct and develop the enterprise;
• The investment enterprise is not a marginal enterprise, and;
• You will be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise, if you are not the principal investor. Ordinary skilled or unskilled workers with no unique or essential skills do not qualify if they are not the principal investor.

The U.S. Department of State maintains a list of E-2-approved treaty countries.

E-2 Visa Application Process

Applicants must request E-2 visas on their own behalf directly at a U.S. embassy or consular office abroad, or by applying for a change of status while in the United States. To apply for an E-2 visa or a change of status to the E-2 classification, the applicant must submit the following documentation:

• Evidence to establish that the nature of ownership of the enterprise or organization qualifies as a treaty organization or enterprise. In addition, if employed at a subsidiary of the enterprise or organization, the parent-subsidiary relationship must be established;
• Evidence to establish that the nature of employment to be performed requires executive, supervisory, or essential skills;
• Evidence to establish the ownership and nationality of the company. This can include lists of investors with their current status and nationality, stock certificates, certificate(s) of ownership issued by the commercial section of a foreign embassy, and reports from a certified personal accountant;
• If filing as an executive or supervisor, or based on special qualifications essential to the enterprise, the application should include certificates, diplomas or transcripts, and letters from employers describing job titles, duties, and the required level of education and knowledge, and;
• Evidence to establish that the investment is substantial. This can include copies of partnership agreements (with a statement on proportionate ownership), articles of incorporation, payments for the rental of business premises or office equipment, business licenses, stock certificates, office inventories (goods and equipment purchased for the business), insurance appraisals, annual reports, net worth statements from certified professional accountants, advertising invoices, business bank accounts containing funds for routine operations, funds held in escrow, etc.

Period of Stay/Extension of Stay

E-2 visa status can be granted for an initial period of two years. Thereafter, extensions are available in increments of up to two more years. With limited exceptions, there is no limit on the number of extensions that an E-2 Treaty Investor or employee may obtain. If there is a substantive change in the terms or conditions of the employer’s basic characteristics (For example, a merger, acquisition or sale), the E-2 visa holder must file a revised petition with USCIS requesting an extension of stay in the United States. As an alternative, he/she may obtain a new visa stamp from a U.S. Embassy or Consulate and then apply for admission into the United States at a port of entry.

Family Members of E-2 Visa Holders

An E-2 Treaty Investor or employee’s spouse and unmarried children under 21 years of age are also entitled to E-2 classification as dependents. An E-2 spouse is entitled to work authorization, but children are not. To apply for work authorization as a spouse of an E-1 nonimmigrant, the dependent spouse must file an application for Employment Authorization with USCIS.

Contact Our Immigration Lawyers Today

For more information on the E-2 visa classification, or to engage Goel & Anderson’s services, please contact our seasoned Virginia immigration lawyers to schedule an in-person or telephonic consultation.