The E-2 visa allows a national of a treaty country (a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US when investing a substantial amount of capital in a US business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
To qualify for an E-2 visa, the treaty investor must:
- Be a national of a country with which the US maintains a treaty of commerce and navigation
- Have invested, or be actively in the process of investing, a substantial amount of capital in a real business within the US.
- Seek to enter the US solely to develop and direct the business being invested in.
- Show ownership of at least 50% of the business or operational control through a managerial position.
In order to qualify as an investment, the treaty investor must invest capital, including funds and/or other assets, with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. Furthermore, the treaty investor must show that the funds are not connected directly or indirectly to any criminal activity.
Definition of Substantial Amount of Capital:
A substantial amount of capital is defined as:
- Sufficient to either purchase a real existing business or establishing a new one.
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise.
- Sufficient to support the likelihood that the treaty investor will successfully develop and direct the business. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
A real business refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.
General Qualifications of the Employee of a Treaty Investor
To qualify for E-2 classification, the employee of a treaty investor must:
- Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
- Meet the definition of “employee” under relevant law
- Either be engaging executive or managerial activity, or if employed in a lesser capacity, have special qualifications.
Executive or managerial activities are those which provide the employee ultimate control and responsibility for the organization’s overall operation, or a major part of it. Special qualifications are skills which make the employee’s services essential to the efficient operation of the business. The qualities that meet this classification include:
- The degree of proven expertise in the employee’s area of operations
- Whether others possess the employee’s specific skills
- The salary earned for the special qualifications.
- Whether the skills and qualifications are readily available in the US
Period of Stay
Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 visa holder may be granted. All E-2 visa holders must maintain an intention to depart the United States when their status expires or is terminated.
Terms and Conditions of E-2 Status
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:
- Relationship between the organizations is established
- Subsidiary employment requires executive, supervisory, or essential skills
- Terms and conditions of employment have not otherwise changed.
Family of E-2 Treaty Investors and Employees
Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. They do not need to have the same nationality as the treaty investor or employee. These family members may seek E-2 visas as dependents and, if approved, generally will be granted the same period of stay as the employee.