What can an E-2 nonimmigrant classification do for you?
The E-2 allows a national of a treaty country to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business.
To qualify for a E-2, generally you must (1) be a national of a treaty country; (2) have invested, or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.; and (3) be seeking to enter the U.S. solely to develop and direct the investment enterprise.
What is considered a treaty country?
A treaty country is (1) a country with which the U.S. a treaty of commerce and navigation, or (2) with which the U.S. maintains a qualifying international agreement, or (3) which has been deemed a qualifying country by legislation.
Are you a Treaty investor or an employee of a Treaty investor?
A Treaty investor (E-2) is one who invests a substantial amount of money and directs the operations of an enterprise they have invested in, or are actively investing in. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
If you are an employee of a Treaty investor, generally you must (1) be the same nationality as the main alien employer (who must have the nationality of the treaty country); (2) be a qualified “employee” under relevant law; and (3) be either engaging in duties in an executive or supervisory capacity, or possess special special skills or qualifications.
What is considered “substantial” capital in a bona fide enterprise?
Your investment capital is considered “substantial” if it is sufficient to cover financial obligations to ensure the successful operation of the enterprise and of a magnitude to support the likelihood that you will successfully develop and direct the enterprise. Whether you purchase an established enterprise or will establish a new start up, the total acquisition or start up cost will be a determining factor as to the substantiality of your investment. The lower the cost of the enterprise, the higher your investment must be to be considered substantial.
A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within the state in which you establish the enterprise.
How do you apply for an E-2 when you are already in the United States?
If you are already in the U.S. maintaining lawful nonimmigrant status, then an application for a Change of Status to E-2 classification may be filed either by you if you are the principal investor or by your employer, on your behalf.
How do you apply for an E-2 if you are outside the United States?
If you are physically outside the U.S., you must apply for an E-2 visa at the U.S. embassy or consulate having jurisdiction over your country of origin. Once you are issued an E-2 visa, the treaty investor may seek admission at any port-of-entry of the U.S. as an E-2 nonimmigrant.
How do you qualify as a Treaty investor?
To qualify for the E-2 classification, generally you must (1) be a national of a country with which the U.S. maintains a treaty of commerce and navigation; (2) have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.; and (3) 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 or other corporate device. Investment is 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.
How do you qualify as an employee of a Treaty investor?
To qualify as an employee of a Treaty investor, the employee must (1) be of the same nationality as the principal alien employer and the treaty country; (2) meet the definition of “employee” under relevant law; and (3) either be engaging in duties of an executive or supervisory character, or posses special qualifications required for the job.
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 either (1) be maintaining nonimmigrant treaty investor status or (2) if the owners are not in the U.S., they must be classifiable as nonimmigrant treaty investors if there were to seek admission to the U.S.
How do you determine if the position offered to the employee is executive or supervisory in character?
Executive or supervisory duties those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation, or a major component of it.
How do you determine if the position offered to the employee falls under special qualifications?
Special qualifications are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the enterprise. These would depend on the type of enterprise but the following would provide some guidance: (1) the degree of proven expertise in the employee’s area of operations; (2) whether others possess the employee’s specific skills; (3) the salary that the special qualifications can command; (3) whether the skills and qualifications are readily available in the U.S.
How do you determine if the investment is “marginal”?
A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.
How long can you stay on an E-2 classification?
An initial stay of two years is granted to qualified Treaty investors and their employees. Extensions may be granted in increments of up to two years each. There is no limit to the number of extensions an E-2 nonimmigrant may be granted but the treaty investors or their employees must maintain an intention to depart the U.S. when their status expires or is terminated.
Can you bring your family if you are granted an E-2 classification?
Spouses and unmarried children under 21 years of age may accompany the E-2 nonimmigrant by applying for an E-2 nonimmigrant classification as dependent by applying at the U.S. Embassy or Consulate if they are aboard or by applying for a change of status if they are in the U.S. If granted, they will generally be given the same period of stay as the treaty investor or employee. Their nationalities need not be the same as the treaty investor or employee.
Can your E-2 dependent spouse work in the U.S.?
Yes. Spouses of E-2 workers may apply for work authorization and if approved, may work for any U.S. employer.
Feel free to contact us if you are interested in pursuing this visa classification.