E2 Visa

The E-2 treaty investor visa is a nonimmigrant visa which allows foreign entrepreneurs from treaty nations to enter into the U.S. and carry out investment and trade activities.

Note: Investment activities include purchase of a new business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

To qualify for E-2 visa as an Investor:

1. You must be the national of a country designated as an E-2 treaty country by the U.S.
2. Have invested or be in the process of actively investing a substantial amount of capital into an enterprise in the U.S. and
3. Have at least 50 percent ownership of the company or have operational control through a managerial position or corporate document.

Note: If you do not own at least 50% of the enterprise, then nationals of the E-2 treaty investor’s country of citizenship must own at least 50% of the company.

To qualify as an E-2 Employee of a Treaty Investor:

1. Be the same nationality as the investor/have the nationality of the treaty country
2. Meet the definition of employee (you cannot be a consultant or contractor but must have a traditional employer-employee relationship) and
3. You are being hired to engage in in a capacity that is supervisory or executive in nature or involves skills essential to the operation of the business (key employee).

The E-2 investment must be a substantial amount that is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the U.S. Additionally, the U.S. business will be involved in active trade or rendering of services. The goal of the business is not simply to provide an income to the E-2 investor.

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There is no set amount in the regulations as to what qualifies as a substantial investment. Generally speaking, the amount invested needs to be proportional to the type of bueinss and expected success of the business. Generally speaking, a substantial amount of capital is:

• One that is substantial proportionally, as per the proportionality test (compare the amount of funds against the cost of business). This means, the larger the proposed business, the larger the investment amount is expected to be.
• One that is sufficient to show that the investor is truly committed to the enterprise and
• One that is large enough or of a magnitude that shows that the enterprise is likely to be successful. The investment should be large enough to actually fund the enterprise and sustain it during the startup phase.

Again, while there is no minimum investment amount required by immigration officials a range of $100,000 to $200,000 is a common figure for and E-2 investment. However, lower amounts can most certainly meet the substantial investment criteria if the investor can show that the amount is proportional to the type of business and will be sufficient to cover start up costs, etc.

Note: If the investment becomes large enough, including over time, you may qualify for the EB-5 Green Card.

Your privileges on an E-2 visa include:

1. If you’re an E-2 Investor, the ability to work and live in the U.S. while you actively manage and operate the business in which you invested.
2. If you’re an E-2 employee, the ability to work and live in the U.S.
3. Ability to travel freely in and out of the U.S. if you have a valid E-2 visa
4. Indefinite extensions in 2-year increments (if filing with USCIS)
5. E-2 visas are generally granted for 2 to 5 years and can be renewed indefinitely with no maximum cap on the number of renewals.
6. Ability to bring your spouse and unmarried children under 21 to the U.S. as E-2 Dependents. The E-2 Dependent spouse is eligible to work in the U.S.

Limitations of the E-2 visa include:

1. The E-2 visa category is limited to nationals of E-2 treaty countries.
2. Being restricted to work only for the specific business in which you have invested or for the E-2 visa sponsor.
3. E-2 visas from the U.S. Consulate are approved for 2 to 5 years but extensions with USCIS are limited to 2 year increments, which can make the application/extension process cumbersome
4. There being no direct path to permanent residency
5. The enterprise must remain “active and substantial”. Business slow downs or becoming “marginal” can result in issues with obtaining renewals.

The E-2 Treaty Investor category is unique compared to the majority of other nonimmigrant visa categories.

For those traveling from abroad, E-2 Visas obtained at a consulate are generally granted for two to five years. Upon entry to the U.S., E-2 status on your I-94 is only given for a maximum of 2 years regardless of the length of the actual visa. Before the I-94 expires, and if your visa is still valid, you may exit and re-enter the U.S. to extend your I-94. This means if you enter the U.S. with only a few days left on your E-2 visa, you can be admitted for 2 years.

For those in the U.S., a change of status or extensions of stay to E-2 status are in 2 year increments.

There is no maximum stay on the E-2 and extensions or visa renewals can be obtained indefinitely as long as you continue to qualify.

There are 2 ways to apply for an E-2

1.Filing an E-2 Visa Application directly to a U.S. Consulate/Embassy

The E-2 visa category does not require prior petition approval. This means, unlike other visa categories like the H-1B, L-1, O-1, etc., the U.S. company is not required to file the Form I-129 and obtain an approval first. To obtain a visa, the following is required:

Many consulates have an E Visa Unit, especially consulates located in treaty countries and will generally have specific instructions on which documents to include, how to submit the application, how to organize the application and how to schedule the interview. It is very important that you check these instructions before filing an E-2 Visa Application.

2.Filing the Form I-129, Petition for Nonimmigrant Worker

For individuals already in the U.S., USCIS will allow the company to submit the Form I-129, Petition to Nonimmigrant Worker in order to request a change of status or extension of status for an E-2 Investor or Employee. This means if someone is in valid nonimmigrant status in the U.S., a petition to change their status to E-2 can be filed so they do not have to travel. The same is true for those already in E-2 status. The Form I-129 can be filed to extend the status of anyone in the U.S. already in TN status. The following is required to file a petition:

The most common way to obtain the E-2 Visa is obtaining the E-2 Visa at the consulate. This is because, unlike other visa categories, while prior petition approval is not required for the E-2, prior petition approval from USCIS is also not given any deference by the Consulate. What this means is that the U.S. Consulate or Embassy will not consider a prior USCIS E-2 approval and will judge the visa application as if it is a new application.

Note: If you file for extension before the expiry of your I-94 you may continue working for 240 days while waiting for the decision.

To qualify for E-2 classification, you must be able to show that the Treaty Investor is a national of the treaty country and that they have invested or are in the process of actively investing a substantial amount of capital into an enterprise in the U.S. The evidence should include:

• Proof of the U.S. company ownership and nationality (at least 50% of the company must be owned by treaty country nationals). This can include the articles of incorporation, share or membership certificates and the passports of the owner(s).
• Proof that the applicant has treaty country nationality (copy of passport, birth certificate, etc)
• Evidence of substantial investment, including but not limited to, bank statements, wire transfers, receipts, invoices, financial statements and business plans
• Source of funds documentation
• A business plan showing financial projections, personnel projections, etc.
• A statement showing that you intend to leave the U.S. after termination of E-2 status.

No, there are no travel restrictions on E-2 visa. You may travel as many number of times as required before the expiry of your E-2 visa. USCIS also does not impose any time limit on your stay abroad.

Yes, you may engage in study while in E-2 status as long as it is incidental to your E-2 activities.

Yes, you may bring your spouse and unmarried children under the age 21 years to live in the U.S. with you. There is no separate visa categories for dependents. They also receive the E-2 visa, referred to as an E-2 Dependent visa.

They may remain in the U.S. in valid status as long as you maintain valid E-2 status. You may also bring a domestic worker on nonimmigrant status to the U.S. (B-1 Visa), provided you can show that:

1. He or she is not abandoning their residence abroad
2. He or she has worked for you for at least one year, or has had an ongoing employment relationship with you and has at least one year of experience as a servant

Yes, your E-2 Dependent spouse (E-2D) may work in the U.S. pursuant to their E-2. The E-2 spouse must ensure that their Form I-94 has listed their status as “E-2S” to distinguish from an E-2 dependent child (either upon entering the U.S. or on the E-2 approval notice). Once an E-2 dependent spouse enters the country, they can immediately apply for a social security number and begin looking for a job.

Beginning in 2022, USCIS no longer requires that E-2 spouses obtain specific Employment Authorization to work.

Yes, your dependents may attend U.S. schools, colleges and universities, and do not have to apply for separate student visa such as an F-1 visa.

1. If you are in a lawful status in the U.S., submit the visa application to a USCIS Service Center in the U.S.
2. If you are outside the U.S., submit the visa application to the U.S. consular office in your home country

The processing time for an E-2 visas varies widely depending to which consular post the application is submitted. The processing time can be as little as 2 weeks to several months.

If you are in the U.S. filing Form I-129 to apply for change of status or an extension of status, processing times for the Form I-129 also vary (generally 4-8 months).

Yes, Premium Processing is available for the Form I-129, E-2 Petition. The Form I-907, Request for Premium Processing can be submitted with the Form I-129, along with the required fee, or it can be submitted once the E-2 petition has been field and a receipt notice from USCIS is received. Once USCIS receives the Premium Processing request, they guarantee the petition will be adjudicated (issue an Approval Notice, Request for Evidence or Notice of Intent to Deny) within 15 business days.